The Bitter-Enders

In a piece nominated by Craig Henry (one of the savviest observers of the case) as the “most evil piece of punditry on the hoax,” Tom Ehrich, a local Protestant minister, opines on the lessons of the last 15 months.

Citing the Group of 88 as an example, Ehrich maintains that Duke currently embodies “a high-profile look at an epidemic of accountability-denial.” Indeed, it would seem to be so: after appointing a bevy of committees when it appeared as if the players might be guilty, the administration and high-profile Group members such as Bill Chafe and Paula McClain are adamant that there be no investigation into the Group’s apparent disregard of the Faculty Handbook.

Yet this isn’t Ehrich’s concern. Instead, in an extraordinary leap of logic, Ehrich argues that Duke needs to adopt the Group of 88’s agenda, even though the Group was, of course, tragically wrong in its commentary on the case. At the very least, Ehrich admits the basis of the Group’s ad: “condemning students’ alleged behavior.”

But, he reasons, the Group was correct to act as it did: “Even if the allegations were baseless, their deep concern for a university apparently losing its way should be seen as a wake-up call. The hapless DA didn’t stir their frustration; teaching Duke students did.”

Imagine if Ehrich were writing about contemporary foreign policy. Yes, he could muse, Vice President Cheney was wrong that Iraqis would welcome U.S. troops as liberators. But we should examine not why Cheney was wrong, but instead all look to implement Cheney’s agenda more aggressively.

Ehrich employs similarly bizarre logic in the rest of his article. “Citizens have much to learn.” Not the race-baiters in the Durham community, however. “The allegations of a black woman that she was raped by three white men ignited racial outcries—not because a DA was leading citizens over a cliff, but because racial tensions always simmer in Durham (and other cities) and occasionally erupt.”

Duke’s campus culture needs to be examined: “If the women [in the extremist anti-lacrosse protests of late March] were correct in describing a high incidence of sexual assault by male students, then Duke has a huge ethical issue, not to mention potential exposure to crippling lawsuits.” Ehrich doesn’t pause to consider that the campus ideology behind such protests, not the unsubstantiated allegations, might need examination.

“Duke,” he concludes, “should be leading the way in a national reassessment of student life, campus ethics, entitlement and privilege, academic freedom, gender relations, underage alcohol use, exposure to liability for failure to provide a safe environment, and the role of over-involved parents.” Indeed. Wahneema Lubiano can serve as the discussion facilitator.

And Ehrich can’t finish his piece without a parting shot at the three falsely accused players: “They have also seen,” he clucks, “how classmates perceived them as arrogant. These perceptions predated March 2006 and need to be taken seriously, if they are to be successful citizens and professionals.”

Truly astonishing.

Brodhead Wins a Sheldon

Last week, in the New York Sun, commentator John Leo awarded President Brodhead the 2007 “Sheldon.” As Leo noted, “The award is named for Sheldon ‘Water Buffalo’ Hackney, the former president of the University of Pennsylvania and the Babe Ruth of modern Sheldonism,” and is given to the president who showed the least courage in the previous academic year.

Brodhead’s first public appearance after the arrests of Collin Finnerty and Reade Seligmann was enough to nominate him for the award: he informed the Durham Chamber of Commerce, “If our students did what is alleged, it is appalling to the worst degree. If they didn’t do it, whatever they did is bad enough.” No Duke official has ever retracted the statement.

Leo also pointed to Brodhead’s inability or unwillingness to stand up to the Group of 88; and his refusal to condemn or even comment upon the extremist protesters that made their way in and around campus in late March or early April.

But Leo singled out Brodhead’s April 5, 2006 “letter to the Duke community.” In light of Leo’s column, the letter, in full, is reprinted below, with a few sections bolded. Remember, Duke’s official line is that upholding the presumption of innocence formed one of two central Brodhead goals.

Durham, N.C. -- April 5, 2006

A Letter to the Duke Community

I want to speak to the issue that is troubling our community and announce five steps we are taking to address it.

Allegations against members of the Duke lacrosse team stemming from the party on the evening of March 13 have deeply troubled me and everyone else at this university and our surrounding city. We can’t be surprised at the outpouring of outrage. [This “outrage” included signs saying “castrate” and “wanted” posters plastered around campus, all of which had been widely reported in the media. Neither Brodhead nor anyone in his administration ever condemned such acts.] Rape is the substitution of raw power for love, brutality for tenderness, and dehumanization for intimacy. It is also the crudest assertion of inequality, a way to show that the strong are superior to the weak and can rightfully use them as the objects of their pleasure. When reports of racial abuse are added to the mix, the evil is compounded, reviving memories of the systematic racial oppression we had hoped to have left behind us. [How would any fair-minded reader not come away from the sentences above with the belief Brodhead was associating these allegations with the lacrosse players?]

If the allegations are verified, what happened would be a deep violation of fundamental ethical principles and among the most serious crimes known to the legal system. Such conduct is completely unacceptable both within the university and in our society at large. If the truth of the allegations is upheld, it will call for severe punishment from the courts and from Duke’s disciplinary system. This university has cooperated and will continue to cooperate to the fullest to speed the ongoing investigation by the police, and I pledge that Duke will respond with appropriate seriousness when the truth is established. [Now that the “truth” has been “established,” what, exactly, has Duke done?]

But it is clear that the acts the police are investigating are only part of the problem. This episode has touched off angers, fears, resentments, and suspicions that range far beyond this immediate cause. It has done so because the episode has brought to glaring visibility underlying issues that have been of concern on this campus and in this town for some time—issues that are not unique to Duke or Durham but that have been brought to the fore in our midst. They include concerns of women about sexual coercion and assault. They include concerns about the culture of certain student groups that regularly abuse alcohol and the attitudes these groups promote. They include concerns about the survival of the legacy of racism, the most hateful feature American history has produced.

Compounding and intensifying these issues of race and gender, they include concerns about the deep structures of inequality in our society—inequalities of wealth, privilege, and opportunity (including educational opportunity), and the attitudes of superiority those inequalities breed. [How would any fair-minded reader not come away from the sentences above with the belief Brodhead was associating these themes with the lacrosse players?] And they include concerns that, whether they intend to or not, universities like Duke participate in this inequality and supply a home for a culture of privilege. The objection of our East Campus neighbors was a reaction to an attitude of arrogant inconsiderateness that reached its peak in the alleged event but that had long preceded it. I know that to many in our community, this student behavior has seemed to be the face of Duke.

Given the history of this campus and city, this has been particularly painful. Only forty years ago, the first African American student was admitted to Duke and at that time men and women lived on separate campuses. Today, more than one-third of Duke undergraduates are members of minority groups. Many, many dedicated members of the Duke and Durham communities have worked hard to bring us all forward. Duke has worked to be a good neighbor, supporting health care, K-12 education, affordable housing, neighborhood stabilization, and economic development through the Duke-Durham Neighborhood Partnership. Duke is not, as some have reported, just an institution for the children of wealthy families. This university admits undergraduates without regard to their family’s ability to pay, and we invest more than $50 million a year to enable the 40% of students who receive grant aid to afford a Duke education. Duke’s Women’s Initiative, launched by my predecessor Nannerl Keohane, took the national lead in exploring issues of gender inequality across the university. Perhaps most important, I know—and I suspect our students’ harshest critics know too—that the huge majority of Duke students are well-behaved and good-hearted, and many work hard for the larger social good.

But if the dark aspect is not the whole truth, this is not a moment to take comfort or mount defenses. To get the good of the current situation, we all need to face up to the profoundly serious issues that recent events have brought to light and address them in a positive, substantive, and ongoing way. If none of these issues is peculiar to Duke, that’s no reason why we should refuse to address them in our midst. As we decide what steps to take, let me underline the values that must govern our actions.

The university is guided by the principles of openness, inclusiveness, mutual toleration, and mutual respect. Everything that furthers these causes advances our ability to work together toward the truth no individual or group can reach alone. Everything that hinders these causes retards the search for wisdom and knowledge. The university is also founded on the principle that we have an obligation to seek the truth, and that truth is established through evidence and disciplined inquiry. Reaching certainty without evidence or process is a double wrong in a university because it opens the door to injustice and violates our commitment to the truth.

In keeping with these values, I want to announce five steps Duke will take to address the issues before us. Some will be accomplished in a short period of time; others will require our sustained attention.

1. Investigation of men’s lacrosse. In regard to men’s lacrosse, I have announced today that the men’s lacrosse season and all associated activities have been cancelled. Lacrosse coach Mike Pressler submitted his resignation today to Athletics Director Joe Alleva and it was accepted, effective immediately. [As Brodhead admitted in his May 2006 meeting with the lacrosse team, he demanded Pressler's resignation--or, effectively, fired the coach. It remains unclear why the administration simply did not admit this fact from the start.]

The criminal allegations against members of the team must continue to be investigated by the Durham police and we will continue to cooperate with that investigation to the fullest. Many have urged me to have Duke conduct its own inquiry into these charges. Frustrating though it is, Duke must defer its own investigation until the police inquiry is completed, first because the police have access to key witnesses, warrants, and information that we lack, and second because our concurrent questioning could create a risk of complications—for instance, charges of witness tampering—that could negatively affect the legal proceedings. I assure you, however, that the Duke disciplinary system will be brought to bear as soon as this can appropriately be done. Until that time, I urge us to be patient and remind ourselves that allegations have been made, the team has denied them, and we must wait until the authorities act before reaching any judgment in the criminal case. [Hardly a ringing defense of the “presumption of innocence,” especially after the “authorities” act and charge someone.]

Quite separate from the criminal allegations, there have been reports of persistent problems involving the men’s lacrosse team, including racist language and a pattern of alcohol abuse and disorderly behavior. [As the Coleman Committee report would make clear, there were no reports of racist language, much less “persistent” use of racist language, by the lacrosse team.] These are quite separate from the criminal allegations, and these we will address at once. The Athletic Council, the body with oversight of athletics in Duke’s governance system, is the right group to perform this investigation. The Executive Committee of the Academic Council and I have asked a faculty subcommittee of the Athletic Council to investigate all the evidence regarding objectionable behavior prior to March 13. The intention here is not to single out the behavior of individuals but to understand the extent to which the cumulative behavior of many over a number of years signifies a deeper problem for which significant corrective actions are called for. I have asked this group to report its findings and to make any recommendations it may have by May 1. I am pleased that Professor James Coleman of the DukeLawSchool, an Athletic Council member, has agreed to chair this committee.

2. Investigation of Duke Administration Response. I have heard a good deal of criticism of the Duke administration for being slow to respond to the allegations against the team associated with March 13. At meetings with faculty, students, community members, and others, I have explained why it took time to know how to respond: we learned the full magnitude of the allegations only gradually, as police and other information was reported in the media, and indeed it appears it took the police themselves some time to understand the nature of the case. Nevertheless, I want to address the concern that my administration did not respond as quickly as we should have and to learn any lessons this episode can teach. To that end, I have asked two individuals with outstanding experience in higher education and civil rights to look into the role of the Duke administration and Duke Athletics in handling this episode. I am grateful to William Bowen, President of the Andrew Mellon Foundation and former President of Princeton University, and Julius Chambers, former Director-Counsel of the NAACP Legal Defense and Educational Fund and past Chancellor of North Carolina Central University, for agreeing to take on this task. They have agreed to report their findings and make any recommendations to me by May 15.

3. Examination of student judicial process and practices. Questions have been raised within the Duke and Durham communities about the way Duke deals with problems of student behavior and the applicability of our Community Standard to social life. The Executive Committee of the Academic Council has charged the Council’s Student Affairs Committee, chaired by Professor Prasad Kasibhatla, to study Duke’s existing judicial processes and practices for students and make any recommendations for change to the administration and faculty by June 1.

4. Campus Culture Initiative. Duke traditionally has given its students a great deal of freedom, but at times the exercise of that freedom is not matched with a commensurate sense of responsibility. We must be concerned about issues of campus culture this episode has raised quite apart from the lacrosse team. This is a time for Duke to take a hard look at our institutional practices to assess the extent to which they do, or do not, promote the values we expect students to live by.

I have asked Vice President for Student Affairs Larry Moneta and Vice Provost for Undergraduate Education and Dean of Trinity College Robert Thompson to direct a Campus Culture Initiative involving faculty, students, and staff. The task of the Initiative is to evaluate and suggest improvements in the ways Duke educates students in the values of personal responsibility, consideration for others, and mutual respect in the face of difference and disagreement. [One wonders how CCI member Chauncey Nartey, whose e-mails prompted the Presslers to file a police report for harassment, embodied these goals. Or CCI race subgroup chair Karla Holloway, who released a mass e-mail containing scurrilous fifth-hand gossip about the lacrosse players. Or CCI athletics subgroup chair Peter Wood, who appeared to slander Reade Seligmann in a June 2006 interview.] The goal of this initiative is not to tell students “what to think” in some simplistic or doctrinaire way. Nevertheless, this is our chance to take the ethical dimension of education much more seriously than heretofore. An important task of the Initiative will be to enlist the faculty more fully in this broader work of education. Since we need to engage the whole of the student population in this process, we will also need to involve all of Duke’s overlapping student groups and communities and learn how they can be parts of the solution.

Although the academic year will soon draw to a close, I believe the Initiative’s work should begin this spring. We should not lose the chance for education in large and small groups supplied by this moment of heightened sensitivity. Some work can be done over the coming summer, and we are looking to pioneer a period of focused engagement on campus issues for upper class students in the fall. In honesty, some of the Initiative’s work will require long-lasting attention and is unsusceptible to any quick fix. This would include promoting a more responsible approach to the culture of campus drinking, a major factor in Duke’s recent crisis and the source of much bad college conduct throughout the United States. I have asked Vice Provost Thompson to report on the Initiative’s progress at the end of this term and again in the fall. [We all know how this initiative turned out—dominated as it was by extremist critics of the team.]

5. Presidential Council In addition to these steps aimed at the lacrosse team culture and our larger student culture, I will convene a presidential council to give advice and offer guidance to me and the Board of Trustees. This group will be made up of wise figures from within the university community, from the larger Duke family, from the national higher education community, and from the city of Durham. I will ask it to receive and critique our internal policies and self-assessments regarding the promotion of these central values; to inform our on-campus efforts with the best practices in other university settings; and to consider ways that Duke and its community can work yet more closely to promote these values in a larger social setting. Emeriti Trustees Wilhelmina Reuben-Cooke, Provost and Vice President of Academic Affairs of the University of the District of Columbia, and Roy Bostock, Chairman of The Partnership for a Drug-Free America, have agreed to chair and I plan to convene the first meeting of the Council this spring.

In addition to these five steps, I look forward to continuing a dialogue with leaders in Durham and at North Carolina Central University. I’m indebted to Mayor Bill Bell for hosting a meeting on the Duke campus last week that brought together many African American leaders to discuss the incident of March 13. We concluded that meeting with the resolve to meet again; I look forward to further discussions with this group and others at the next meeting, which my colleague NCCU Chancellor James Ammons has offered to host. Durham is a proud city with a rich history and a diverse population that responds to the challenges of the day better than many other cities in this country. I’m resolved to seize the moment to do what I can to strengthen what is in many aspects, but surely not all, a positive relationship between our university and city.

Nobody wishes trouble on one’s house and I regret the trouble that this incident has brought to Duke and Durham. But when trouble arrives, it’s the test of a community and its leaders to deal with it honestly, act accordingly and learn from it. This is a deeply emotional time as well as a rare opportunity for education – for our students, faculty, administrators, and members of our community. Let’s move forward with a serious commitment to make progress on the many complex issues that confront us now.

Richard H. Brodhead

President

Duke University

Those looking for a robust defense of the presumption of innocence—indeed, for any defense of the presumption of innocence—would need to look very hard in this letter.

Cline on Quadruple Homicide Case

Interim DA Jim Hardin has assigned assistant district attorney Tracey Cline to prosecute ex-DA Mike Nifong's one remaining case, involving a quadruple homicide.

This is the same Tracey Cline who:

• oversaw the March 23, 2006 non-testimonial order, which even Nifong implied was excessively broad.
• implemented the “No-Drop” policy, in which the Durham DA’s office has adopted a policy of effectively abandoning even the fiction of prosecutorial discretion, but only on sexual assault cases.
• was tasked by Nifong with assisting him on the lacrosse case.

The move raises grave questions about Hardin's willingness to deal with the ramifications of the lacrosse case.

The Group in Action

The clip below is from a lecture by Group of 88 member Michael Hardt. Much like fellow Group of 88’er and now Trinity dean of the social sciences Sally Deutsch—the professor who responded to Mike Nifong’s preprimary publicity barrage by deviating from her syllabus to devote class time to endorsing how Nifong contextualized the case—Hardt is considered a respectable scholar.

Consider, then, the general approach that Hardt offers in his remarks—from the suggestion that Western democracy and Leninist dictatorship equally oppress the people; to the casual droppings of names such as Foucault, Derrida, and other favorites of the academic far left.

9-22 Transcript

Today's N&O contains an excerpt from the transcript of the September 22, 2006 court session--which Judge Smith has singled out in his order yesterday designating a hearing on possible contempt of court by Mike Nifong.

Smith: So his report [Meehan’s May 12 report] encompasses it all?

Nifong: His report encompasses ever -- because we didn’t -- they apparently think that everybody I speak to about, I talk about the facts of the case. And that’s just, that would be counterproductive. It did not happen here.

Smith: So you represent there are no other statements from Dr. Meehan?

Nifong: No other statements. No other statements made to me.

Bannon: Just so I’m clear, Mr. Nifong is representing that the facts of the case weren’t discussed in those meetings.

Nifong: That is correct. The facts of the case, other than the fact that we were seeking a, the male fraction DNA.

The Meehan Deposition

The deposition of Dr. Brian Meehan is now available at Liestoppers. As in his testimony at Mike Nifong’s ethics hearing, Meehan was difficult to pin down and overly wordy. But in several key areas, he was damning for Nifong—perhaps even more so than he would be in the hearing itself.

“Mr. Obfuscation” in Action

Previewing the unclear and occasionally contradictory ethics hearing testimony that he would offer, Meehan struggled to give straight answers to even the simplest of questions. For instance, when Nifong attorney Dudley Witt asked him how many forensic cases DNA Security handled each month, Meehan couldn’t say; he could talk, however, about how many “specimens” the lab handles, which (he said) would be between 300 and 600 monthly.

It sounded, then, as if DSI was a significant figure in law enforcement —handling a minimum of 3600 specimens per year. Witt followed up: since 2005, then, in how many forensics cases had Meehan testified?

Meehan: “I would say that it’s probably less than half a dozen.”

Oh.

According to the transcript, here’s how Meehan described the manner in which his lab was hired to conduct DNA tests in the highest-profile criminal case in North Carolina history:

There was phone calls being made between the detective and Nifong to determine if they would want us to do the work and if the price was right and dah, dah, dah, dah, dah, dah, dah, back and forth.

At one point, Meehan referred to Mark Gottlieb(!) and Ben Himan as “attorneys”; when Bar attorney Doug Brocker asked him if he meant to say “detectives,” Meehan admitted it was so, adding, “You all look alike to me.” At another point, he ordered Witt to “rephrase that question. That was kind of awkward”; he later lectured Witt that “you might want to think about being more specific” in the attorney’s interrogatories.

During the course of the deposition, Meehan:

• claimed to have done “depositions” in criminal cases (neither side’s lawyers inquired further into this bizarre assertion);
• said the first person who contacted him was Detective “Sorsey” (the officer’s name is Soucie);
• compared DNA to whole-wheat and white spaghetti or like having a house on “29 Main Street”;
• rebuked Witt for calling him “just a geneticist”; and
• told Brocker that he “will not, absolutely will not” testify in the trial if he wound up being called after noon on Friday.

In discussions about the December 15 hearing, Meehan rebuked Brad Bannon for having asked him “a series of questions that were directed and not easy to answer.”

DSI Practice

Meehan struggled to recall exactly when and with whom he spoke to people from either Nifong’s office or the DPD about the case. His excuse? “We handle business like that all the time; there’s no need to make specific notes.”

Meanwhile, as he did on the stand, Meehan had a habit of meandering off into tangential matters, forcing both attorneys to try to steer him back on course.

Specifics

Despite his odd behavior, in the deposition, just as in the trial, Meehan was damning to Nifong’s case. At the April 10, 2006 meeting—of which Nifong was later to claim no recollection—Meehan said that “we very carefully went over this data,” which included results that the DNA of multiple unidentified males was found on Mangum’s rape kit. Meehan recalled going over the profiles “in detail” with Gottlieb, Nifong, and Himan. Since he considered this information “critical,” he was “absolutely” certain that he discussed it with Nifong on April 10.

(Gottlieb, it’s worth remembering, said that during these meetings, he “wasn’t quite understanding it” and “was completely lost,” not exactly inspiring confidence in the DPD’s handling of events.)

Moreover—contrary to Nifong’s repeated assertions to the court that he and the police effectively sat mute during these meetings—Meehan remembered that “Mr. Nifong and the two police investigators asked questions.” Indeed, “there were some general questions, to more complex questions. We spent a lot of time talking about it.” Meehan stated that Nifong asked him to try to work on the specimens with the unidentified male DNA to see if better resolution could be obtained. Meehan said that he felt “it was important that [Nifong] understood—and I believe he understood” that there were unidentified male DNA profiles.

Meehan also said that he made clear that the fingernail DNA mixture was not a “match” to Dave Evans but simply a mixture from which Evans, and many other males, could not be excluded. Moreover, Meehan recalled Nifong asking him about the possibility of DNA transference in a trashcan (Mangum’s fingernails were, of course, found in Evans’ bathroom trash can). “Suppose I blew my nose and threw the tissue in a trash can, and it laid on this fingernail, could there be a transfer. That’s a highly likely transfer.” [emphasis added]

If this aspect of Meehan’s deposition is to be believed, Nifong knew from the start that the fingernail DNA was utterly useless in tying Evans to any “crime.”

Meehan denied that Nifong ever asked him to prepare a report modeled on the SBI style, and said that the “positive match” report seemed to be what Nifong desired based on conversations between the two. After some prodding from Brocker, Meehan confirmed that he had never produced a report that didn’t include all test results before.

Nifong’s Perjury Trap

Meehan was clear on two points: (1) on May 12, “we first reviewed the information in the case entirely . . . we then went over the report”; and (2) he had a “specific” conversation with Nifong that the May 12 report was not a final report.

Indeed, if these sections of Meehan’s deposition are to be believed, Nifong would seem to have committed perjury both in his unequivocal statement that between May 12 and December 13, he never read the report; and in his deposition claim that he considered the May 12 report a final report, if with the material on the unidentified male DNA included.

----------

“I’m a geneticist,” concluded Meehan, “and legal jargon is probably something I need to stay away from.” On that point, probably everyone involved in the case would agree.

Smith Sets Date

Anne Blythe from the N&O reports that Judge Smith has set a date for Mike Nifong's contempt of court hearing: July 26.

Smith's complete language:

Upon motion of the defendants and on its own motion, the Court finds probable cause to believe that you should be held in criminal contempt of court for your willful behavior committed during the sitting of the Court in its immediate view specifically, that while appearing before the Court in your capacity as District Attorney in the prosecution of these actions, you willfully and intentionally made false statements of material fact to the Court on September 22, 2006 by representing to the Court that the May 12, 2006 report of Dr. Brian W. Meehan as provided to the defendants included all of the statements made by Dr. Meehan to you regarding the results of all examinations and tests conducted by DNA Security Inc. and that there was nothing else to provide; and in doing do, you thereby failed to disclose the existence of material exculpatory and impeachment evidence within your knowledge that the defendants were entitled to under our laws of discovery. This behavior is in violation N.C.G.S.5A-11(a)(2).
.

You are hereby ordered to appear before this Court on the date indicated below and show cause why you should not be punished for contempt of court. If you do not appear as ordered, without justification or reasonable excuse, the Court may issue an order for your arrest as by law provided.

Note that the language specifies that Smith was acting not only as a result of the defense motion but also on his own prerogative; and his warning to Nifong that if the ex-DA doesn't show up, he could be arrested.

Nifong Hearing

The Nifong dismissal hearing is now underway; Mike Nifong is not present in the court. It's live on WRAL.

The special prosecutor, Robert Zaytoun, said he had made "numerous attempts" to speak with Nifong--spoke to Nifong's wife, friends of Nifong. Zaytoun said there would be no hearing if Nifong submitted an immediate letter of resignation.

Nifong called him yesterday afternoon at 5.30pm; he said he knew the proceeding would occur today. Nifong said he was out of state and couldn't communicate in writing from wherever he was. Nifong stated that he would be back in the state this weekend and would prepare a letter of resignation for next Monday.

Nifong said that he did have notice of the hearing.

Zaytoun presented five exhibits: (1) amended complaint filed by Bar; (2) excerpts from the Bar transcript--findings of fact by the Disciplinary Hearing Committee; (3) remarks of David Freedman; (4) DHC order disbarring Nifong; (5) transcript of Nifong deposition to the Bar.

Process is not superfluous--legislative intent was very clear, a citizen should have the right to initiate a hearing. The process "deserves to have a legal closure."

Judge Hudson has just declared that he will recess proceedings until 11.00am Monday--in effect, giving Nifong time to submit a letter of resignation without his acting.

Beth Brewer's attorney, Betty Lawrence, is now addressing the court, asking Judge Hudson to make the findings himself, rather than allowing Nifong to resign. She notes that it is "one final insult to the citizens of Durham County" allowing Nifong to resign rather than to act on the petition.

Hudson: "There is no defense for Mr. Nifong to these proceedings."

Nifong goes out in style--claiming that he can't resign today because he's at an undisclosed location out of state, out of reach of a fax machine to send in his resignation letter, and so he should be able to set the day of his resignation, rather than have the court do so.

Nifong Deposition: Personal Issues

Beyond specific issues related to the case, the Nifong deposition contained a number of intriguing personal revelations about the former DA. At various points during his two days of questioning, Nifong revealed himself to be:

• a prosecutor who was at best indifferent to gathering all the evidence or even doing the basic of his job;

• a figure who appears to believe that once a crime is charged, it is basically impossible to prove innocence;

• a candidate who was flexible with his personal and campaign finance matters; and

• a person who held deep grudges that he couldn’t conceal even with his career on the line.

Nifong as Chief Prosecutor

As he would in the ethics trial itself, in the deposition Nifong expressed discomfort with the language of the March 23 NTO, which stated that the DNA tests would exonerate the innocent. Given the DA’s objection to this language, State Bar attorney Doug Brocker asked whether Nifong had ever raised this issue with his chief assistant, David Saacks, who had signed off on the NTO.

Nifong’s response? “Not specifically, primarily for the reason that he would not normally be somebody that would even be dealing with such an order. He doesn’t have a caseload in which this would normally come up. I probably need to have a meeting with my staff generally and talk about some of the issues that have arisen in this case, and this could be one of them. But I have not done that yet.”

Earlier in the deposition, Nifong denied that he ran for a full term for financial reasons; instead, said he, he had a “vision” for the office. Whatever that (never-revealed) vision was, it apparently didn’t involve hands-on management by him.

The Role of a Prosecutor

Under questioning from Brocker, Nifong conceded that he had an obligation to determine whether an allegation was credible, which he could fulfill “by looking at evidence that is inconsistent with that statement and making a determination.” What about, Brocker wondered, considering exculpatory evidence?

Confirming that he should never have been near a prosecutors’ position, Nifong proclaimed that he was “not sure that I would say that it’s my obligation” to look at such evidence if a defense attorney offered it before indictment. Indeed, reminisced Nifong, he never had done so in any case that he prosecuted.

Nifong’s Varying Memory Skills

The quality of Nifong’s memory appears to vary widely depending on the issue at hand. For instance, this exchange:

Brocker: In your response to the grievance in this case, you have talked fairly specifically about what was discussed at the April 21^st and the May 12^th meetings.

Nifong: I believe that—I believe that to be the case.

Brocker: Can you explain to me why you were able to recall those meetings with that specificity in responding to the grievance, but did not recall them during the hearings with the Court?

Nifong: Other than the fact that when I got that December the 13^th motion, it refreshed my recollection, bang, about that. And it was just something that had not—I had not recalled. But yes, I mean once—once I saw that motion on December the 13^th, there was no question that I remembered it.

Yet when asked about his December 21 interview with the New York Times—a much more recent event, after all—Nifong had a memory blackout.

Brocker: After this hearing, you did an interview with—the December 15^th hearing—you did an interview with a New York Times reporter on December 21^st?

Nifong: Yes, sir.

Brocker: Why did you decide to do that interview?

Nifong: I can’t give you a specific reason. I mean I don’t know. I don’t recall my thought process at the time.

Brocker: Generally you had not been granting interviews to reporters after—according to your testimony, generally after April 3^rd?

Nifong: That is correct.

Brocker: Do you remember how long the interview with the New York Times reporter—it’s reported that it was a three-hour interview. Do you recall it being that long?

Nifong: No, sir. It was—I recall it being a relatively long interview, but I don’t recall—I can’t imagine what I would have talked about for three hours to anybody.

Nifong and Actual Innocence

In contrast to his disinterest in reading most case-related documents, Nifong admitted that he “did in fact read all of that [attorney general’s] report.” Previewing his “something happened” moment from the hearing, Nifong was then asked whether the still believed Mangum was sexually assaulted. He paused, said he was “considering how to phrase my answer,” paused again, and then asserted that he agreed “there was not sufficient credible evidence to take the case to trial.”

Brocker pressed: the report, after all, said the three players were actually innocent, not simply that there was insufficient evidence. Did Nifong agree with this conclusion?

The transcript indicated another pause, followed by this statement:

My personal understanding of actual innocence could be that that would be something that would be based on conclusive proof that either an event never happened or that a person other than the person who was accused, therefore who we’re considering the innocence of, had committed that.

An example would be where someone is convicted of a rape and then at some point later testing that was not available at the time of the initial trial reveals that the sexual intercourse was with someone other than the defendant, so the defendant could not be the person. And I think that is actual innocence.

Short of something like that, I am not sure that I could ever feel comfortable in any case saying that anybody is actually innocent. I was not there that night. I do not know what happened that night.

As Brocker noted, “effectively that would mean that the only situations as a district attorney in which you would be willing to say that a person was innocent of an alleged crime was if you had conclusive evidence that somebody else had committed that crime.” Perhaps so, mused Nifong, but in any case it’s not the job of a prosecutor to determine whether someone charged is innocent or not.

His Handling of the Case

In retrospect, Nifong admitted, he might have been better served by interviewing Crystal Mangum at some point in the process. But he couldn’t “say for sure that I would necessarily have come to the same conclusions that the attorney general’s staff came with respect to that because for instance on none of the four occasions when I saw her did I see any evidence whatsoever of any impairment.”

The major issue raised by both Attorney General Cooper and the report, however, was not Mangum’s impaired status. It was the fact that she never had been asked about the myriad discrepancies in her stories, and proved unable to resolve them when she was asked.

Paralleling the Baker/Chalmers report, the ex-DA contended that the behavior of defense attorneys lengthened the case. He singled out—of all groups—the Finnerty team for criticism. After hearing (accurate, as it turned out) “rumors” that Finnerty might have an alibi, Nifong asked one of Finnerty’s attorneys, Bill Cotter, “if he intended to put on an alibi defense.” Cotter’s response? “If I put on an alibi defense, you’ll get the notice of it at the time that the statute says I must give you notice.”

Could the fact that after Reade Seligmann made public his alibi the state arrested one of his alibi witnesses and then adjusted the timeline have encouraged the Finnerty attorneys to remain cautious? Nifong didn’t seem to consider this possibility.

Nifong’s Retirement

Under the North Carolina retirement system, local government employees become eligible for a pension—at any age—after having worked for 30 years in the system. But Nifong only had 28 years.

So, last fall, he bought back the three years for his time as a social worker in the 1970s. (He had lost the money for those years when he used the funds instead to pay for law school.) When, Brocker wondered, did Nifong decide to buy back the three years? “I believe it was sometime last year,” Nifong replied. He had decided he would do so, Nifong claimed, just after Jim Hardin left—but, when pressed, admitted that he hadn’t done so until late 2006.

In other words, as the ethics charges closed in, Nifong realized he might be out of a job and ineligible for an immediate pension. So he hurriedly bought back the years to ensure that he can start collecting tomorrow if Judge Hudson removes him from office today.

The Nifong Campaign

Nifong denied that the primary campaign had any bearing upon his handling of the lacrosse case. Indeed, he claimed, it had hurt him. How? He told Brocker, “I read a poll about two weeks before the election that—before the primary that showed me with, as I recall, a 16-point lead. Now, when that polling had actually been completed I don’t know. Of course the margin by which I actually won [the primary against Freda Black] was about 3 percent. So it is—it was obvious to me that at least in the time between when the poll came out and the time that the election or the primary was held that the Duke lacrosse case had hurt my position.”

Nifong said he couldn’t remember where this poll originated: “I just remember reading the poll in the paper. I was frankly surprised that anybody was polling for that kind of an election. But I do remember reading a poll, a scientifically conducted poll, that said that.” A few minutes later, he reiterated the point: “The only poll that I saw that I believed to be a scientifically conducted poll showed me with a fairly substantial lead a few weeks before the primary, and that lead more or less evaporated.”

Nifong, however, was referring to an N&O poll for the general election—not for the primary. In the primary, a Black poll showed the challenger ahead by 17 points on the very day that Nifong began his preprimary publicity barrage. And the only public poll, taken shortly before the primary, showed Black clinging to a one-point lead. In the end, Nifong won the primary by three points. And at the time, even he admitted that the case had helped his standing among African-Americans—while hurting it among conservative whites, most of whom couldn’t vote in the primary.

Brocker also explored with Nifong the nearly $30,000 in loans he floated to his campaign in the weeks before the primary, as his fundraising dried up. Nifong responded that he had loaned $5000 to his campaign. Brocker then showed the DA the campaign finance report, identifying him as the source of more than $28,000 in loans. Nifong’s reply: “I mean I was aware that my wife had loaned some money to the campaign, but I was not sure—I mean don’t know why it’s in my name, and I did not know the amount. And I don’t recall ever seeing this report before.” If he didn’t read court documents, I suppose, why should he read his campaign finance documents, either?

The surreal exchange continued:

Brocker: Do you see there that this is a repayment, which appears to be dated 6/30/06? And the repayment amount there is $20,357.03?

Nifong: Yes, sir, I see that.

Brocker: Were you aware of that?

Nifong: No, sir, I was not . . . I don’t even know what to say. I mean certainly with respect to the $5,000 that I loaned to the campaign, yes, sir, I can do that. With respect to the other, I’m going to have to talk to my wife and, you know, find out from her. I mean I can certainly tell her the question was raised. And I can’t---

Dudley Witt: (interposing) We’ll see what we can do about it.

Nifong: I mean this is all news to me.

By the time of Nifong’s ethics trial, Nifong’s campaign finance report had been modified—as Liestoppers revealed yesterday. On the stand, meanwhile, the DA argued that his wife, Cy Gurney, had charged more than $23,000 in campaign-related expenses on her credit card (without, apparently, his knowledge!), and that the funds were subsequently repaid to her. This didn’t constitute a loan, however.

How, exactly, a candidate’s wife using her personal funds to pay for the campaign and then getting paid back out of campaign funds later on doesn’t constitute a campaign loan Nifong didn’t explain. His asserted lack of knowledge, of course, allowed Nifong to maintain the fiction that financial motives played no role in his case-related decisions.

Nifong the Person

At a time when he needed to put his best foot forward, Nifong couldn’t resist lapses into the bullying persona everyone saw during the lacrosse case. He repeatedly insulted Jackie Brown during the course of the deposition. He could not conceal his contempt for Joe Cheshire: “My experience with Mr. Cheshire over the years has been that the amount of cordiality that he shows is directly proportional to whether you give him what he asks for.” And he ridiculed Bob Ekstrand, saying that he had assumed personal responsibility for all of Ekstrand’s cases not—as was widely rumored—to punish Ekstrand for the attorney’s outspoken opposition to Nifong’s abuses but because Ekstrand “was held in such low repute by my assistants that I was afraid that his defendants would not get fair treatment from our office.”

So Mike Nifong oriented his policies to ensure that Bob Ekstrand’s clients got fair treatment. How generous of him.

Nifong Hearing Tomorrow

The hearing to formally remove Mike Nifong as DA is scheduled for 9.30am tomorrow. Will Nifong show up? Capt. Bill Wrenn of the Durham County Sheriff's Office gave WRAL the following scoop: "Mr. Nifong's wife informed one of my officers earlier in the day that Mike had taken his guitar and left, and she didn't have any idea when he'd return."

Freedman: Communication Matters

Anne Blythe has a summary of an afternoon panel on prosecutorial misconduct in which Jim Coleman and Michael Tigar joined NCCU law professor Irving Joyner (who had regularly defended Mike Nifong until several weeks ago) and David Freedman (who defended Nifong at the just-concluded ethics trial).

Freedman argued that communication between prosecutors and defense attorneys was critical. Given that he represented someone who said he didn't feel obligated to meet with defense attorneys to consider exculpatory evidence--and, in fact, had refused to do so in this case--Freedman probably was not the best messenger for this argument.

Jim Coleman had the most important comment: pointing out Nifong's extraordinary line of defense--that he hadn't read critical documents in the case--Coleman observed, “It seems strange to me that any prosecutor would go forward in a serious criminal case without having reviewed a file. In private practice, a lawyer who did that would be fired. I think it reflected indifference.”

Assorted Deposition Items

Miscellaneous items from the Nifong deposition, beyond the detailed summary.

This case involved several figures—Nifong, Mark Gottlieb, Linwood Wilson—who appear to be unethical to the core. Each used his deposition to deflect blame onto others.

So, for instance, while Gottlieb claimed in his deposition that he was not really involved in the case, Nifong went out of his way to implicate Gottlieb in all decisions—down, even, to minor details such as saying that Gottlieb up all meetings with Meehan.

Nifong also told a revealing vignette relayed to him by Gottlieb. In searching the captains’ house on March 16, before any of them had even given statements, Gottlieb recalled, they saw one of Mangum’s unpainted fingernails (which contained the DNA of an unindicted player). Said Gottlieb, “When we recovered it, it was like it was there as a trophy”—giving a sense of the . . . open . . . mind with which Gottlieb pursued the investigation, but also suggesting that Nifong was simply trusting the judgment of the police.

The Nifong deposition also made public for what I believe is the first time the Raleigh mental hospital that treated Crystal Mangum in 2005. Nifong stated that Mangum spent time in Holly Hill Hospital. The institution’s website states that it treats:

• Depression
• Anxiety and Stress
• Bipolar Disorder
• Other Emotional and Mood Disorders
• Behavioral Problems
• Alcohol Abuse and Dependency
• Illicit and Prescription Drug Abuse and Dependency

Responding to Syl Jones (and Nifong)

An excellent letter in today’s Star-Tribune responding to the Syl Jones column I recently critiqued. As so often has occurred in this case, the voice of reason comes from a Duke student, in this case Sarah Bennett, a member of the Class of 2006:

In his rush to ridicule “conservative cheerleaders” and criticize “rich white kids,” Syl Jones failed to thoroughly research the Duke lacrosse hoax before writing his June 24 commentary.

Jones portrayed the falsely accused as unremorseful over having attended the party. However, as early as March 28, 2006, the players made a statement expressing their “sincere regret over the lapse in judgment in having the party on March 13 which has caused so much anguish for the Duke community and shame to our families and ourselves.” Additionally, the players have repeatedly spoken out about what they've learned throughout the past year and how they hope this case will highlight problems within the criminal justice system.

I am also troubled by Jones’ statement that “something did happen” at the party. Instead of hiding behind ambiguous statements, Jones should have explicitly stated what he believed the players were guilty of and provided evidence for his claim. It is this ambiguity that has allowed those who wish to blindly vilify the players to make insinuations without having to provide any evidence.

The Duke lacrosse case has shown how out of control a false accusation can become. While I doubt that any Duke lacrosse player will ever again hire a dancer or host a raucous party at which underage drinking is present, writers like Jones seem all too willing to ignore the lessons of the past year, and instead continue to make baseless accusations and presumptions about the lacrosse players.

Linwood Bails on Nifong

The Durham DA's office released to the Herald-Sun recently fired DA investigator Linwood Wilson's deposition to the State Bar. We now know why Nifong's attorneys were willing to call Tara Levicy as the DA's only non-character witness, while refraining (as had been expected) from calling Wilson.

In his May deposition, Wilson said that, after reflecting on his Dec. 21 interview with Crystal Mangum, "I was hearing stuff I had never heard before or read before . . . I was questioning whether or not she was telling me what really happened that night or if she was trying to fill in the blanks."

In an interview with the H-S, Wilson claims that shortly after the interview, he told Nifong, "You need to get rid of this piece of crap [the lacrosse case] as fast as you can. [Mangum] has told me an unbelievable story. She is not credible. She is volunteering for a polygraph, and we need to do it." In his Bar deposition, Wilson also claimed to have asked Nifong to give Mangum a lie detector test, but Nifong refused, remarking, "I don't polygraph victims, especially sexual assault victims . . . and make those victims think that I don't trust them or believe them."

Wilson's attorney, meanwhile, said "it's a travesty he was fired. He was only doing his job."

Wilson's claim to have been troubled by the Dec. 21 interview emerges at a convenient time for the former investigator. The alternative interpretation of events would suggest that the interview itself was a poorly structured frame executed by Wilson and Nifong--an interpretation, of course, that could expose Wilson to possible criminal charges down the road. Either way, however, Wilson's change of heart is more bad news for Nifong's hopes of avoiding a criminal inquiry into his own behavior.

Nifong Deposition, Part II

Yesterday’s post looked at portions of the Nifong deposition involving the police, the pretrial statements, and the April 4 lineup. Today’s will focus on Nifong’s dealings with DNA, Dr. Brian Meehan, and SANE nurse-in-training Tara Levicy. Tomorrow’s will explore aspects of Nifong’s personal life and character that the deposition revealed.

The deposition showed a prosecutor who readily admitted that he didn’t read reports, unapologetically stated that his quest was for evidence that would harm the lacrosse players, and never really asked whether a crime occurred in the first place.

The deposition also suggested that Nifong had developed a good working relationship with Tara Levicy—who joined Mark Gottlieb as the only other person (including, remarkably, his wife, Cy Gurney and the now-departed Linwood Wilson) to which the DA consistently referred by a first-name basis.

The highlights:

Meehan

Nifong offered yet another interpretation of the April 10 meeting with Dr. Meehan—at which, according to Meehan and Officer Ben Himan, the lab director told Nifong that his tests had revealed the presence of multiple unidentified male DNA on Crystal Mangum’s rape kit.

In his deposition, Nifong explained that he didn’t remember anything about the meeting. Why? He suggested to Doug Brocker that “it would probably just have been an introductory meeting and nothing about the case would have been discussed.”

As for the May 12 report, Nifong claimed that Meehan didn’t even go over it with him at the May 12 meeting—an assertion denied both by Meehan and by Gottlieb.

The Role of DNA in the Case

Nifong admitted that—at some point—Meehan told him about the multiple unidentified male DNA, but added that “I was not thinking of that in terms of having much relevance to the night in question . . . I really wasn’t thinking of that as having a whole lot of relevance.”

Bar attorney Doug Brocker pressed on this point, asking the obvious question:

Brocker: At the time did it occur to you odd or unusual that they were able to recover DNA on some of these rape kit items from a single cell, but there was no DNA remaining from an alleged gang rape that had happened that same night?

Nifong: Not specifically, because as I said, the SBI lab had said that there was no ejaculation from that . . . I was aware that the victim that night had been in—she came in one car. She left in a separate car. She was in a police car. She was at the access center. She was at Duke Hospital. There were a lot of places where a fractional amount of DNA could be picked up from something that she was sitting on.

But I really, as I indicated, wasn't thinking very strongly about the possibility of that particular—those particular results having anything at all to do with the assault. And, you know, certainly in retrospect I believe that I probably should have paid more attention to that. I didn't at the time, and I think that led to some of the issues that resulted from, you know, my not having made notes and having paid more attention to it.

In other words, Nifong didn’t consider it odd that Meehan’s tests suggested that the “victim” might have picked up stray DNA from the cars in which she traveled to and from the party, but had no DNA on her from anyone who attacked her in a 30-minute violent assault.

The next day, Brocker followed up on the point, in more explicit terms, producing a rationalization for the lack of DNA from Nifong that would have been comical were the subject not so serious:

Brocker: There was nothing in Ms. Mangum’s statement that prior to December 21^st that ever talked about being assaulted with anything other than a private part, I think is how she generally referred to it; is that right?

Nifong: That’s how she referred to it. But just as I indicated, when I was talking about victims not always knowing whether condoms are used, victims don't always know what body parts are inserted either.

On the other hand, in discussing the DNA mixture on the fingernail from which Dave Evans (and two percent of the rest of the people in the country) could not be excluded, Nifong asserted, “That was the result that we’d been waiting for.” At another point, Nifong stated that he had “glanced” at the May 12 report, reading only “specific pages, specifically involving Mr. Evans.”

Indeed, Nifong all but conceded another ethical violation (involving the duty of a prosecutor to evaluate all the evidence, including that which did not support his case) in this exchange with Brocker:

Nifong: I will concede that I made a real mistake in not going over the report more carefully. I should have done that. But had I done so, I’m not certain that I would have necessarily noted everything because I really wasn’t thinking about our previous discussion in terms of other items at the time. But I did not give the report the attention that I probably should have at the time I received it.

Brocker: OK.

Nifong: My primary concern was to get the report back to Durham, make copies, and get it out to the lawyers, because it was late in the afternoon on a Friday.

Brocker: Do I take it from your last answers that when you received that May 12^th report that you believed or assumed that it included the information that unidentified male DNA had been found on evidence items that didn’t match the lacrosse players?

Nifong: Well, actually I think what I’m saying is that I wasn’t really thinking about that particular topic in terms of that. I don’t know that that even crossed my mind. [emphasis added]

In general, Nifong argued, the unidentified male DNA was unimportant. “It neither showed that these defendants did not do it,” he remarked, “or that somebody else did do what was alleged in this.”

When Nifong tried making this argument in the DHC hearing, Lane Williamson had little difficulty disposing of it. Surely, the DHC chair noted, not all evidence has to be a “smoking gun” to be relevant to the case? Nifong conceded the point.

An Interim or Final Report?

Nifong gave so many excuses for not turning over the DNA data that it was often difficult to keep track. Meehan, meanwhile, eventually fell back on the claim that the May 12 report was not a “final” report, and therefore Nifong couldn’t violated any discovery requirements. The lab director repeated this argument in the Nifong ethics trial, the DA's attorneys didn't challenge the testimony, and when presented with an opportunity by Lane Williamson to characterize the May 12 report as a “final” report, Nifong declined to do so.

In the deposition, however, Nifong conceded that he did consider the May 12 document to be a final report.

Brocker: What you’re saying in your answer is that . . . at the time you produced the data on October 27^th, you didn’t do that with the intent of providing them with the remaining results because you’re saying you thought---

Nifong: (interposing) Yes, sir.

Brocker: ---they had it?

Nifong: That is correct. That is correct . . .

Brocker: So—and I’m just trying to make certain I understand—it’s not your position that you intended to provide them with certain results and a written report on May 12^th and then provide them with the remaining results intentionally on October 27^th?

Nifong: That is correct . . . My position is that I thought that I’d given them the full thing on May the 12^th and that we gave them all the underlying data, which contained the other items that are referenced here, at that time, but that it was not with the intention of hoping they wouldn’t discover it. I just didn’t realize it hadn’t been produced till December 13^th . . .

Brocker: At the time you got the May 12^th report from DSI, was it your understanding that that was the final written report that you expected them to produce on the tests?

Nifong: I think that’s a fair statement, yes, sir.

Meehan and the Dec. 15 Hearing

Nifong struggled mightily to explain the December 15 hearing—at which Dr. Meehan admitted, in response to a question from Jim Cooney, that he and the DA had entered into an intentional agreement not to report all the results.

Would he agree, Brocker asked the DA, that other than proffering Dr.Meehan to testify—with no advance warning to defense attorneys—that he did not make any “affirmative statements to the Court” that the May 12 Meehan report was incomplete? “That is true,” Nifong conceded, adding that he “did not make such a statement specifically.”

Asked about his expectations for the hearing, Nifong remarked that it never occurred to him “that somebody might testify to something that's not the truth, you know, that somebody that I would—that would be a witness, like Dr. Meehan in this case, that he would—it would never have occurred to me that he wouldn’t have said the exact truth as he recalled it.” Was he, Brocker wondered, suggesting that Meehan hadn’t told the truth?

Nifong hedged. “For the most part,” he remarked, “I think that Dr. Meehan testified to what he believed to be true.” The exception? “There was one question . . . from Mr. Cooney . . . where he asked for an answer that seemed to contradict Dr. Meehan’s earlier testimony.” Nifong didn’t say why, on that question, Meehan suddenly stopped telling the truth.

Nifong unconvincingly asserted that he didn’t cross-examine Dr. Meehan on this crucial point because Meehan had implied elsewhere, earlier in the hearing, that no intentional agreement had been reached.

Tara Levicy

The deposition included a discussion of a heretofore unrevealed conversation between Nifong and SANE nurse-in-training Tara Levicy—who Nifong repeatedly termed “Tara,” rather than Nurse Levicy or Ms. Levicy, in his notes.

Despite Nifong’s stated open file discovery policy—as well as the statutory requirements of the state—the DA conceded that it appeared he had not turned over the notes of this conversation with the defense. (He did turn over the notes to the attorney general’s office.) And, unlike his multiple meetings with Dr. Brian Meehan, Nifong did take (very detailed) handwritten notes of his chat with Levicy.

The DA claimed that he could not recall when this conversation occurred, but believed it was a phone call. There also was a June meeting between Levicy, Duke Hospital SANE director Teresa Arico, and Nifong, notes for which were never produced.

The notes produced in the deposition offered a glimpse of how Nifong and Levicy, in the event of a trial, intended to get around the fact that Dr. Julie Manly performed the key parts of the exam—and that Manly came to have grave doubts as to whether a rape occurred.

“Tara actually guided her [Manly] through technique,” claimed Nifong. Only in Durham could a DA have tried to argue that a then-uncertified SANE nurse knew more about medical procedures than a fourth-year resident M.D. While Manly was not routinely involved in sexual assault exams at Duke, she told defense attorneys that she had performed around 30 pelvic exams in her previous position, in Idaho.

Other aspects of the Levicy/Nifong conversation dealt with the subjective evaluations in which Levicy (who later claimed to have never encountered a woman who lied about rape) specialized. Mangum’s behavior, according to Levicy, was “consistent with sexual assault emotionally and physically,” indeed of someone suffering from “rape trauma syndrome.” Levicy denied that Mangum showed any signs of intoxication (despite what Mangum herself would tell UNC doctors the next day), and recorded that Mangum offered “consistent responses” combined with “periods of crying, deep sadness.”

When Brocker asked about the January interview between Linwood Wilson and Levicy—in which Levicy radically changed her story, in ways convenient to the prosecution’s case—Nifong’s memory suddenly grew hazy. He said that he couldn’t “specifically recall the circumstances under which that came about”—indeed, he couldn’t even “recall” asking Wilson to chat with Levicy.

It was just a coincidence, apparently, that “Tara” was willing to help him out one last time.

Nifong Rationalizes His Statements

Nifong, somewhat better prepped than he was in his deposition, providing his excuses for the preprimary publicity barrage. As Doug Brocker asked, “Describing what had happened to date as a stonewall of silence, how would that have helped people come forward?” And, moreover, how exactly did Nifong think that his making racially inflammatory statements would cool racial passions? In an interesting slip of the tongue, Nifong describes himself as the "elected district attorney" when he made the statements--although, of course, at that time, he was merely the appointed DA.

More from Wonderland

Two "only in Durham" events from today's Herald-Sun:

Asked about the dismissal of his client, former DA investigator Linwood Wilson, Wilson's attorney, Fred Battaglia, said "he didn't have enough information(!) to discuss the situation."

(Bill Thomas did: "Considering his conduct in the Duke lacrosse case, in my opinion he should leave. His interview [with Crystal Mangum] was very disturbing. It demonstrated they were not trying to seek the truth but wanted to conform their evidence against the defendants. Because of that, Linwood Wilson should be gone. As this case is investigated further, I would predict he will be the subject of future civil and criminal inquiry.")

From John Stevenson's article:

Superior Court Judge Orlando F. Hudson said a deputy sheriff attempted to serve the hearing notice at Nifong's November Drive home Monday evening, but Nifong's wife -- Cy Gurney -- would not accept it.

The deputy then posted the notice on Nifong's door, according to Hudson.

"That's proper service as far as I'm concerned," the judge added.

Nifong Deposition, Part I

The Mike Nifong deposition is now available, through Liestoppers. It makes for a fascinating read. Part One of the deposition in today's post; Part Two will form tomorrow's post.

In some ways, the deposition previewed his ethics trial testimony—especially in his consistent claims that he read virtually no documents related to a case that he had claimed was as important as any Durham had ever faced.

In some ways, it did not, as Nifong was far less willing to concede errors, even in his preprimary public statements.

And, in a fitting testimony to the ex-DA’s character, Nifong also used the deposition to try to settle scores with people he has grown to strongly dislike—such as Jackie Brown, Bob Ekstrand, Sgt. Shelton, and Susannah Meadows.

Involvement

According to Nifong, he became involved initially because he expected the media to ask him about the case. He also implied that he was unaware that Tracey Cline (the ADA who specializes in rape cases) had handled the formation of the non-testimonial order, and that David Saacks’ inexperience in rape cases was one reason he took the case over. Yet it seems inconceivable that Saacks, in his initial conversation with Nifong (on March 23), would not have told the DA of Cline’s involvement. As he did at his ethics hearing, Nifong also criticized the NTO’s language about DNA evidence exonerating the innocent (even though, of course, in the Leroy Samuels case, Nifong himself had used identical language).

Nifong claimed that as of March 27, the only things he knew about the case were what the non-testimonial order contained—a scarcely credible claim, given the media attention the allegations received on March 25 and March 26 and his own stated assertion that anticipated media interest formed a primary reason in his decision to take the case in the first place.

Contradicting the assertions of both Officer Ben Himan and Sgt. Mark Gottlieb, Nifong claimed that he was not given the captains’ statements in their March 27 meeting—although he was aware of them from the two officers’ comments. The meeting, he asserted, focused primarily on the McFadyen e-mail—contradicting the recollections of both Himan and Gottlieb. And again contradicting the two officers’ depositions and Himan’s testimony, Nifong denied that the March 27 meeting included any discussions of Crystal Mangum’s inconsistencies. He recalled asking no substantive questions about the case, nor making any comments about the weaknesses in the evidence, nor commenting, “You know, we’re fucked.”

“It was my impression,” Nifong recalled, “that the officers did not believe [the captains] had been totally truthful in their responses.” Why? Because no one was at the house when officers responded to the first 911 call. Nifong said he became certain a rape occurred because neither Himan nor Gottlieb expressed skepticism at that initial meeting, and because Tara Levicy said there was a rape. The captains, he conceded, were “outwardly cooperative” with police.

Nifong asserted that his initial desire to get up to speed on the case was not related to any eventual prosecution but “because anything in Durham that involves a Duke team and criminal charges is going to get a lot of attention.”

In any case, according to Nifong, “I wasn’t really involved in reviewing written documents” during his preprimary publicity barrage.

Interviews

Nifong retreated to his later estimate that he only gave around 20 interviews in the preprimary publicity barrage. Using the deposition to settle scores, he said he did give a few interviews to people who dropped by without interviews—such as Newsweek’s Susannah Morrison [sic].

Why did Nifong give the interviews? His rationale changed during the course of the deposition.

1.) During the ethics hearing, Nifong asserted that he gave interviews in the hopes that his doing so would encourage witnesses to come forward. Yet in his deposition, he initially didn’t offer that reason at all—he just said that he wished to accommodate press interest, but eventually became overwhelmed by the requests.

2.) Then, after the lunch break (when, of course, he could have conferred with his attorneys), Nifong suddenly started mentioning the law enforcement purpose for the statement. Doug Brocker, in response, noted that “none of the statements were actually requesting that the players come forward and talk with you.”

True, said, Nifong, but he blamed the media for not reporting his comments accurately.

Brocker: “Describing what had happened to date as a stonewall of silence, how would that have helped people come forward?” Why, Brocker wondered, not just request they come forward?

Nifong: His denunciatory approach would put “pressure” on the players “by their parents and by their colleagues and people like that”—in effect, attempting to undermine their right to silence.

3.) Then Nifong turned to the nature of Durham: “We had allegations of an assault having been made by privileged members of one race against an unprivileged member of another race.” He feared there might be “unrest,” and his public statements could ensure the community the matter was being taken “very seriously.”

He was not engaged in race-baiting, claimed Nifong, but was merely seeking “to assure the members of the community that this case that had this particularly potential unrest-causing aspect” would be prosecuted fairly and “this was not something we were going to sweep under the rug.”

In response to a question from Brocker, Nifong denied that his statements inflamed racial tensions—because, he noted, no racial violence occurred.

The Nature of “Suspects”

As he did in the ethics trial, Nifong denied that all 46 white players were “suspects,” even though the NTO of March 23 listed them as such. He only confined his public remarks to the team, he suggested, because the captains, in their statements, said the only people who attended were team members.

But this claim, of course, was not true—as came out at the trial, when Brocker pointed out that Dave Evans’ statement explicitly said that non-lacrosse players were at the party. And how does a claim that he initially relied on the captains’ statements explain Nifong’s decision to include in the NTO someone like Brad Ross, who wasn’t even in Durham that night? Nifong never said.

At one point, Brocker very cleverly tripped up Nifong on his own words, by pointing out that even though Reade Seligmann and Collin Finnerty had been picked out by Mangum on April 4, Nifong made race-baiting comments at an April 12 campaign forum:

Brocker: Would you agree then that once a suspect has been identified or somebody has been accused, that it would violate Rule 3.6 to make a statement similar to the ones you’ve made here?

Nifong: I am not really—I’m certainly not an expert in that, but I would—I would certainly—obviously things change under Rule 3.6 as you get further along. These—I believe these—I would justify these under Rule 3. —a part of 3.6. I—I cannot justify any such statements as being appropriate after indictments had been returned or something like that, if that’s what you’re asking. And I did not make any such statements, to my knowledge, after that person was accused.

Because I clearly think that when a person is accused, that does change some of thesome of the Rules or the impact of some of the Rules because some of them specifically refer to an accused. I think 3.8 refers to an accused. And I don’t think that you have an accused until such point as that process has been returned. So there’s a different—there’s a different set of rules that applies up to that. Yes, sir.

Brocker: But I thought you had said in response to a previous question that you believe that once the victim had identified a particular person that you believe they were accused?

Nifong: I said at that point—at that point, I’m getting—I’m getting uncomfortable with the question. [emphasis added]

Discrepancies

Nifong claimed that he learned of discrepancies in Mangum’s story and between Kim Roberts’ version and Mangum’s version[s] only “within the first two or three weeks that I had the case”—an extraordinary assertion, given that he had been on national TV multiple times by that point. The testimony of both Himan and Gottlieb held otherwise. He said that he “couldn’t recall” if he even looked at Roberts’ March 22, 2006 statement—which contradicted Mangum’s version of events in virtually every respect—before seeking the first two indictments.

If a trial had occurred, Nifong asserted, he would not have called Roberts as a witness.

In general, he said, he learned about the discrepancies in Mangum’s stories only shortly before indictments, and only from discussions with Himan and Gottlieb.

As to the case-related documents? Again, Nifong asserted that he saw them only within “two or three” weeks of taking the case. The ex-DA conceded that he had seen the Levicy report in the first week, but (preposterously) suggested that he might have only seen part of it, and not the parts that indicated Mangum said no condoms were used.

Anyhow, mused Nifong, he could not say that any point before hr recused himself in January 2007 that he had “carefully read every word” in the report. Moreover (continuing his excuses for his condom speculation), he took Mangum’s assertions that no condoms were used to really mean that she just hadn’t seen any of her attackers put on condoms.

Contrary to the sergeant’s low-keying his involvement in the case, Nifong asserted that in these early weeks, Gottlieb almost always initiated conversations with him, not Himan.

Written Reports

Nifong asserted that he received the Shelton and Sutton reports from the DPD only after obtaining indictments—again, an extraordinary assertion, suggesting that he had no problem going ahead with indictments on wildly incomplete evidence. As to the reference in the Sutton notes that Mangum had claimed five people raped her, Nifong stated that he first learned of this on June 22, when Joe Cheshire highlighted the point in a courthouse press conference.

Amazingly, Nifong asserted that as of the date of the deposition—May 17, 2007—he had not read Sgt. Shelton’s report. Indeed, stated Nifong, he never spoke to Shelton about the case, even though Shelton was the first police officer to see Mangum after the party.

The UNC Hospital report, in which Mangum said that she was “drunk and felt no pain,” which hinted at her psychological problems, and in which she told a different version of events (that she was hit in the face and banged her head on the sink)? Nifong said he didn’t become aware of this report until December 2006—even though it was handed over in the first stage of discovery, on May 18.

Contradicting the assertions of SBI agent Jennifer Leyn—that Nifong was on the phone with her or people from her office several times, and was eager about the DNA results—Nifong suggested that he had only one conversation with the SBI lab, on a date that (of course) he couldn’t remember.

So: forced to choose between conceding he lied to the public or portraying himself as almost unbelievably lazy, Nifong chose the latter.

The April 4 Lineup

Nifong conceded that he knew of the two previous lineups (March 16 and March 21), but denied their usefulness, since the photos were taken from the Duke website.

He had told the police that he wanted to be consulted before the photos from the non-testimonial order were used.

Nifong denied that the April 4 lineup violated Durham procedures: “we didn’t even have a suspect, so I didn’t see any way that we could do a lineup in the usual sense.” (The fact that his office had publicly identified all 46 white lacrosse players as suspects—and that he had done so repeatedly in his preprimary publicity barrage—apparently didn’t count.) He also denied instructing Gottlieb to tell Mangum that the lineup would contain only people the police believed were at the party.

Then, in the next paragraph, Nifong conceded that he knew there would be a “motion to suppress” this lineup—which was the reason he ordered it videotaped—suggesting that Nifong knew exactly what he was doing in structuring a “no-wrong-answers” lineup.

Even though there was never any mention before December that Mangum’s identification of Dave Evans as having a mustache actually referred to Evans having 5:00 shadow, Nifong claimed that he had a chat with Gottlieb almost immediately after the lineup in which Gottlieb suggested just that. No record of this conversation, of course, survives.

Nifong asserted that he “discounted” the March 16/March 21 photo arrays. Why? Because of Michele Soucie’s report that Mangum had said, “This is harder than I thought it would be.” In other words: he didn’t get the result he wanted, so he decided to ignore it.

Why, Brocker wondered, did Nifong not ensure that another lineup was done, one that conformed to Durham Police procedures? He didn’t know, Nifong said—that was the police officers’ job, not his.

The Mangum File

To gauge Nifong’s interest in ferreting out the truth, Brocker asked the ex-DA about his meetings with Crystal Mangum, the sole witness in a one-witness case.

Brocker: Did you have -- in your Interrogatory Answers, you identified a number of meetings that you had with Ms. Mangum -- meetings that you had with Ms. Mangum?

Nifong: I believe four.

Brocker: The first one being on April 11th?

Nifong: Yes, sir.

Brocker: 2006. And the last one being on either January 11th or January 12th, 2007?

Nifong: Sometime in January, 2007. Yes, sir.

Brocker: Did you ever talk to her about, during any of those meetings, about the facts of the case or the allegations that she was making?

Nifong: Not specifically, no, sir.

Brocker: Did you ever ask her about any of the inconsistencies that had come to light in her statements about what had happened?

Nifong: No, sir.

Brocker: And did you ever discuss with her any of the evidence that had come to light which arguably was contrary to the allegations she was making?

Nifong: No, sir.

Brocker: Did you discuss with her the lack of DNA that was found from the lacrosse players on any of the rape kit items or on her clothing?

Nifong: No, sir.

Brocker: Did you discuss with her the other DNA that was found by DNA Security on her either on the rape kit or on the clothing that did not match the lacrosse players?

Nifong: No, sir. I didn’t discuss any of these things with her.

Personal

Nifong claimed that Jim Hardin told him that he would not get to be appointed a judge unless Nifong agreed to become the DA. Nifong asserted that he never sought the position, because he liked trying cases. He added that the two main contenders for the post were Tracey Cline and Marvin Waters, but that Easley worried about the political fallout of having to choose between the two, and saw Nifong as an acceptable compromise choice.

Nifong denied that he had ever agreed that he would not stand for election before accepting the point—although, of course, Easley has declared otherwise.

Nifong asserted that he ran in part to block Freda Black from the position, but also because he had a “vision” for the office (which he doesn’t define in the deposition). He fired Black, he said, because of a perception that she was overpaid vis-à-vis the amount of work that she did; because some people had left the DA’s office rather then deal with her; and because key figures in the Police Department disliked Black.

Nifong claimed that he wanted to run a positive campaign, “despite the urgings of Jackie Brown”—a sign of just how angry the ex-DA was at Brown’s later decision to help his opponents. He complained that Brown had too many conflicts with his wife, Cy Gurney, and said that he took her on only because she would help appeal to lower-educated voters.

Nifong repeatedly blamed Bob Ekstrand for not ensuring that his clients “cooperated” with police.

As he did in the hearing itself, Nifong used his deposition to blast the one member of the DPD who got the story right from the start—Sgt. Shelton, who clucked Nifong, “did not seem to appreciate that this was a very serious situation.”

In general, Nifong complained, the DPD was slow to get him reports—especially Shelton.

Much like Gottlieb, Nifong admitted that he, too, looked at blogs, and specifically referred to an early timeline post (probably the one on Johnsville News) that proved prescient in the end.

Linwood Is Out

The N&O reports that Nifong investigator Linwood Wilson has been fired, effective tomorrow. Wilson, those trail of ethically dubious actions began with the Elmostafa arrest and peaked with the ill-fitting December 21 frame, lasted less than a week after the removal of his patron.

There's little surprise in this news: even Nifong, in his disciplinary hearing, struggled to defend Wilson's behavior.

Ethical Dimension

Lane Williamson at his best, noting the apparent lack of an "ethical dimension" in Mike Nifong's conduct.