Metro: Cheshire, Bannon, Finnerty

This week, Metro Magazine published a wide-ranging interview with three key players from the lacrosse case: Joe Cheshire, Brad Bannon, and Kevin Finnerty.

Reporter Sharon Swanson astutely observed that the case “begs the question of how it was possible that a case without foundation could drag on for over a year in the country’s 10th most populous state—and in one of its most literate regions. Why couldn’t Nifong be stopped? And even more importantly, why would the North Carolina Conference of District Attorneys introduce legislation limiting Open File Discovery only one day after the Attorney General’s press conference?”

Swanson set the scene for the interview in Cheshire’s office, which is “wallpapered in green linen and the personal artifacts of a successful career and marriage.” She noted that Cheshire teased Bannon—“the intense, boyish-looking younger attorney”—about “his resemblance to actor George Clooney.” (This item came only days after Court TV commented on Bannon’s resemblance to Clark Kent . . .)

Swanson discovered that “for Cheshire and company, the Duke lacrosse case isn’t just about issues with the NC grand jury system or rogue prosecutors or tainted identification procedures—it is about the far more fundamental issue of open discovery.” The legal obligation, which dates only from 2004, was strongly championed by Cheshire and Bannon, and grew partly out of their work in the Alan Gell case, where prosecutors withheld vital exculpatory evidence. (The story was part of a typically impressive N&O series from Joe Neff.)

According to Cheshire, the previous law, which gave open-file discovery in death-penalty appeals, “gave a small window into prosecutor’s files, and it was shown dramatically that prosecutors in death penalty cases were not giving defense lawyers evidence that the clients were innocent, couldn’t have committed the crime, or that the crime happened in a way that would not have qualified for the death penalty . . . They were abrogating their responsibility to see that justice was done. DAs were putting winning ahead of justice.”

Cheshire continued: open discovery led to “a transparency in the system of justice, which is what you are supposed to have. It’s an important doctrine that the Duke case has finally shown to people: It is a prosecutor’s job to see that justice is done.” Imagine, indeed, the lacrosse case without Open Discovery. To take one prominent example, the unethical Nifong surely never would have turned over Det. Himan’s notes with Crystal Mangum’s conflicting descriptions.

Another critical point raised by Cheshire: “The playing field is still not level (even with the Open Discovery Law) because prosecutors still get to pick the judge they want to try a case in front of. It’s like Mike Krzyzewski or Roy Williams picking what officials they want and what day they want to play the game. We are the only state in the US that has DA calendaring. They have enormous power.” Nifong lost that power in the lacrosse case only by the anomaly of the case being declared an exceptional one, requiring it to pass to a single judge, from outside Durham County.

Cheshire and Bannon strongly criticized the state Conference of DA’s for trying to weaken the law in this past legislative session (the attempt was beaten back), though they praised some prosecutors in the state, such as Wake County DA Colon Willoughby.

Kevin Finnerty, meanwhile, raised another issue—the lack of grand jury transcripts. Bannon agreed, telling Swanson, “The grand jury system in this state is a joke. The day of the lacrosse indictments, there were 82 indictments in 96 minutes. And there is no duty to provide exculpatory evidence.”

We already know that Sgt. Mark Gottlieb gave the grand jury deceptive information—according to his testimony in the Bar deposition, he told the grand jury that, from the time she saw Tara Levicy on March 14, 2006, Crystal Mangum was consistent in the stories that she told. That statement was untrue.

On other matters: We’ll never know what Gottlieb might have told the grand jury about DNA evidence. Might he have told the grand jury, for instance, that there would be additional DNA tests to come back, tests that would ensure Reade Seligmann’s and Collin Finnerty’s guilt? We’ll also never know what Gottlieb might have told the grand jury about Kim Roberts. Might he have told the grand jury, for instance, that Roberts’ story backed up Mangum’s version of events—even though, in fact, Roberts’ statement to police contradicted Mangum’s in every respect? We'll also never know what Gottlieb might have told the grand jury about the April 4, 2006 lineup. Might he have told the grand jury, for instance, that the lineup was procedurally routine, with no mention of Mike Nifong ordering the police to confine the lineup to lacrosse players?

Meanwhile, despite the call of AG Roy Cooper, North Carolina continues to ignore the American Bar Association’s suggestion that all states have mechanisms for a superior body—either the state Supreme Court, the AG, or the governor—to remove rogue DA’s.

Kevin Finnerty also praised the leadership supplied recently by Mayor Bell: “We are not being judgmental on the people of Durham. My guess is that the majority of people in Durham are embarrassed by how the district attorney conducted himself and how the police continue to conduct themselves. This shouldn’t reflect poorly on the people of Durham, but it certainly reflects poorly on the leadership. For the mayor to stand up and ask for an objective review of what has gone on here, that is a great first start. Finally someone is stepping up and showing leadership, and it is long overdue.”