Meehan Cross-Examination

p. 5: "Non-probative" specimens there in his May 12 report--therefore not withholding anything.

[Why, then, didn't Meehan or Nifong make this point in the Dec. 15 hearing?]

"This was a poor choice of words, and I shouldn't have used it."

"Was a surprise to me that nobody reacted" to his non-probative claim--just assumed everyone would be able to identify it.

[It's the defense lawyers' fault for not figuring out his language!]

Meehan: DSI now has a new policy--record meetings with "clients." Did not do so with Nifong.

Meehan, as he did in the Dec. 15 hearing, continues to desperately claim that he was not trying to hide anything with his report.

As in his Dec. 15 hearing, makes his bank comparison--no DNA after a crime just like robbing a bank without leaving fingerprints.

Freedman: can have no DNA if improperly collected?
Meehan: yes

But, of course, lots of DNA did survive.

In an odd line of cross-examination, David Freedman is suggesting that some or much of the DNA found on Crystal Mangum might not have come from sexual contact--and might have come from mishandling the evidence. [Meehan: evidence was not mishandled.]

[Even if true, the issue is irrelevant--the question is why Nifong didn't turn it over.]

Freedman is exploring at considerable depth the possibility that the evidence was mishandled.

Freedman is now trying to blame Meehan and Meehan alone for the incomplete nature of the report.

Meehan: Nifong never asked him to conceal anything in the report.

[NC statutes are clear: subjects of an NTO order must receive all test results from NTO as soon as practically possible. Freedman seems to be skating over this point.]

Meehan: has never done an "interim report" before. Probably has prepared more than 2000 reports. Has never prepared an "interim report" in any other case.

[Freedman appears to have violated a lawyers' maxim of never to ask a question to which you don't know the answer.]

Meehan appears to equate "non-probative" evidence with "exculpatory" evidence.

Admits that Nifong asked him to write a letter for the court outlining Meehan's objections to handing over discovery.

Meehan: at 12-15 hearing, his answers were factual and accurate--but his listeners misunderstood him.

--Objective of the report was set out by Nifong.

"Non-probative" reference was included by Meehan--Nifong never asked for it.

--calls Nifong a "good student" about DNA

--"absolutely not" that May 12 report was a final report--but Nifong never asked for one.

Meehan: Nifong encouraged that male DNA there, but claims he wasn't upset that non-lacrosse player DNA was present.

"Certain" that they spoke of this issue in the 4-21 or 5-12 meetings.

Williamson: Did Nifong ask you to follow up on this information?
Meehan: No additional follow-up we could do.
Nifong said there were "other reference specimens" to be sent in--but, of course, these didn't match, either.

Meehan told Meehan on "multiple times" that there was unidentified male DNA.

Nifong never explicitly said that May 12 report wasn't a final report.

Nifong initially was excited that DNA was present. But Meehan has no recollection of Nifong reacting to discovery of non-players' matches.

Meehan claims that unidentified DNA was probably "benign"--comparable to kindergarten stduents' DNA on their teacher(!!). Some of Mangum's male DNA came from a rectal swab.

Williamson: In any other rape cases, have you ever limited this to just reference specimens?

Meehan: Zero.

W'mson: How many reports have you done?

Meehan Over 100.

Meehan concedes "this is the only report of its kind we have ever issued." But said this didn't concern him. Nifong's request "didn't send off any bells." His excuse? "This was an unusual case before we got it."

Meehan: discussed unidentified male DNA in all three face-to-face meetings with him.

April 21--talked about putting the Evans fingernail item into the report.

More Meehan

Nifong: this report would be used for a proceeding.

"No question that this was not a final report."

[Yet the reference seems to be for additional evidence items received after May 12, not recapitulating the items received before May 12.]

"He never specifically detailed to us what he expected to see in the report"--despite what he claimed in his Dec. 28 letter to the Bar.

Nifong--despite his claim to the bar on Dec. 28--never referenced this in his discussions with Meehan at the time.

Meehan: "It's expected that I should know what's in the report."

His report "very different" than SBI summary report--even though Nifong claimed in his letter to the Bar that he had instructed Meehan to mimic the SBI summary report in the Meehan report.

Meehan concedes under examination that the SBI report made clear when there were no matches to DNA evidence. Meehan further concedes that he did not follow this policy.

"I did attempt to make it clear that 'there is other information here, it doesn't match anything, but it is here.'" Would have listed this if a final, conclusive report.

Meehan: one difference between our report and SBI report is that DSI report listed individual DNA profiles.

[How exactly does this fit with his "privacy" concerns?]

Meehan: Himan called back to say that Nifong did not want a final report that would take into account any new tests.

Didn't produce final report "because we were never asked."

"Of course" expected that Nifong would request a final report--but Nifong never did so in this case.

Concedes that August discovery request was "quite extensive."

Q: Did Nifong then note that he would need to produce a final report, in response to this motion?
A: Meehan--no, but raised cost and privacy concerns.

Nifong tells Meehan it would be "very important for me and my company" to appear at the 12-15 hearing. Meehan says that he had doubts that he could be prepared for the hearing.

His testimony at the Dec. 15 hearing was "truthful and accurate." Concedes that he then issued a "supplemental report," which "aligned our report a little more closely to the SBI report."

For the first time, Meehan is using the phrase "interim report" to describe his May 12, 2006 document.

Meehan: "we supplied amended report on our own"--Nifong never requested it.

Concluding question: Nifong never asked for a complete report. Meehan would have provided one had he asked.

Nifong Trial, II: Morning Summary

Key items from morning hearing:

--Himan cross-examination:

I was surprised that Nifong attorney Dudley Witt didn’t go harder after him. In effect, Witt allowed everything from yesterday’s bombshells to remain unchallenged.

The ostensible goal: to show that Nifong could have believed a crime occurred at the time he began his preprimary publicity barrage.

The apparent real goal: to drag the lacrosse players through the mud one last time. It was almost as if the cross-examination represented a concession of defeat by Nifong: he couldn’t impeach Himan, so he’d lash out as much as possible.

--Meehan testimony:

Meehan is not, to put it mildly, the most exciting or articulate witness.

But the Brocker examination exposed, to a much greater extent than we had realized to date, how much Nifong knew about the multiple unidentified males’ DNA before Nifong pursued indictments.

The incomplete report is still to be examined, but this was a very damaging examination for Nifong.

The Bar elected not to charge Nifong with violating the CPR rule prohibiting pursuing cases without probable cause. But, for all practical purposes, this is the key issue in the Nifong trial.

This sandwich order summarizes the theme of the trial, to date.

Meehan Testimony

Dr. Meehan is now up.

Meehan has prepared a chart making clear that the entire sexual assault kit (vaginal swab, rectal swab, panties): all analysis was available on April 10, or before any indictments were made.

Meehan called Nifong to let him know that initial results were done the morning of April 10. Nifong, Gottlieb, and Himan arrived in Burlington that afternoon--for a 2-hour meeting.

Meehan: "We reviewed all of the data that we had to this point in the case." Also provided an interpretation of the tests.

"We went through--specifically went through all the results from this case with Mr. Nifong."

"They were not classic results--they were not the best results."

Nifong asked questions in that meeting--despite earlier suggestions he had not done so.

[Nifong, who said he didn't take any notes during his meetings with Meehan, is taking notes during Meehan's testimony today.]

Meehan says that he was "sure" he would have told Nifong that multiple unidentified DNA in the rape kit at the 4-10 meeting--or seven days before indictments.

Q: Is that exclusion 100%?
Meehan: Yes.

Meehan says he went over this information with Nifong on April 10: he knew that no DNA matches to Seligmann or Finnerty.

Meehan admits that between April 10 and April 21, his office did additional amplification on the rape kit in the hope of providing material that could be used to identify "additional suspects." who were not lacrosse players.

"My best guess is that there was a minimum of four males" in DNA--none were lacrosse players. This information was shared with Nifong on April 21.

Clear from Meehan testimony that conversations with Nifong were extensive and that Nifong was fully aware that multiple male, unidentified DNA was found.

Evans fingernail item--mixture and a match--not anywhere near as reliable as an exclusion. Made this clear to Nifong.

"Number of items" from public hair combings and sexual assault kit that had male DNA; none matched the lacrosse players.

"We spent a lot of time" discussing the Evans fingernail.

April 21: Nifong said he would need a report that showed all the matches they had for a "court proceeding."

Meehan: "Clear that for whatever the proceeding was, it was important that he receive a report that identified whatever match we had."

"Clear to me that there would be other suspects coming in."

"This was the first time we had been asked while a case was going that we were asked for such a written report."

'It was uncommon to be asked for a report while the case was ongoing."

The "first interim report that we had ever produced."

May 12 meeting was around an hour--long enough to make sure that Nifong understood what was in the report.

May 11 test--found that at least two sperm male DNA on panties. Went over this item with Nifong on May 12 meeting.

Himan Cross-Examination

Nifong attorney Dudley Witt is currently cross-examining Ben Himan, with the apparent intent of showing that Himan's investigation before Mike Nifong took over the case established that a rape must have occurred.

At this point, the two are simply going through Himan's and Gottlieb's notes.

It's interesting to see what items from the investigation excluded--namely, Crystal Mangum's inability to identify any of her "attackers" on March 16, nor the lack of bruises on her at the March 16 interview, nor whether the captains offered to take lie detector tests and voluntarily give over their email passwords.

Witt also didn't ask Himan whether, in their interview, Dan Flannery repeatedly urged police to contact Kim Roberts, who would confirm that no rape occurred.

Witt is effectively reading Himan's notes into the record, with Himan simply saying "yes"; the intent is to suggest that enough elements in the statements of Dave Evans and Dan Flannery confirmed Mangum's story as to believe its credibility.

In the only new item to appear in more than a half-hour of testimony, Witt referenced a racially insensitive e-mail from lacrosse captain Matt Zash, which Zash admitted sending.

In an apparent contradiction of a statement made by David Freedman in the opening (that Dave Evans' and Dan Flannery's statements confirmed reports of "witnesses" from the neighborhood that racial slurs were used), Witt has just admitted that the police never had such a report until March 20 (from Jason Bissey)--or four days after the captains voluntarily spoke with police.

Asking about the interview with Roberts: Witt isn't mentioning any of the myriad contradictions between the Roberts and Mangum statements.

The repeated mantra: broomstick, racial slurs.

Witt is now moving through the area where Himan is most vulnerable--the March 23 NTO, where the application is essentially fraudulent (a claim that evidence existed that the players used first-name aliases). Witt: it's true, is it not, that this application was prepared by the Police and not the DA's office? Himan: Yes.

While Witt hasn't mentioned either the March 16 or March 21 photo arrays, he's now on to the McFadyen e-mail.

The cross-exam has been plodding, since Witt is only asking Himan to confirm his written notes.

Witt now seems to be challenging the AG's conclusions that Mangum was impaired the night of the party.

Discuss meeting with Dean Sue on April 13--says she had talked with Dan Flannery about events of the party. Wasiolek claims that Flannery told her it was a "bad scene."

Himan also says that he spoke with Alleva--says that he had heard that parents had gotten involved and didn't want the players to meet with the police.

It's unclear how anything that happened after March 27 will help Nifong in beating the charge of pre-primary improper statements.

Admits that he first found out that Reade Seligmann was at the party from photos shown on MSNBC--after the indictments.

Himan admits that in his March 27 meeting with Nifong. he said that he considered Mangum believable.

Witt refers to the Nifong "we're fucked" comment as "the word that Mr. Nifong said."

Witt: "When you went to the grand jury, you presented the case as you wanted." Witt: did Nifong tell you to withhold or sugarcoat information to grand jury? Himan: No.

Himan says that he had no conversations with Nifong in which Nifong said to withhold evidence.

Witt has concluded his cross-exam: very little damage done to Himan. The Bar didn't even redirect--little need seemed apparent.

ADA David Saacks said that he had never before recalled that many people being on an NTO from the DA's office.

Lane Williamson: "was it apparent to you that Mr. Nifong had any ass't DA helping him with the prosecution?" Tracey Cline said that she had read over some of the case file.

At any time, did you investigate the background of Mangum? Himan: Yes--for criminal record.

Gave Nifong material on Mangum's criminal record as of April 11.

Himan also says that police were aware that Mangum had "some mental issues," "on a lot of pain medication," "extensive medical issues." Knew that she was bipolar. Knew that she was on Flexeril. Later told police that she was on psychological medicaion.

Nifong knew about Mangum's medical history, including her psychiatric history, as soon as Himan did--this information came prior to the indictments of Seligmann and Finnerty.

Himan admits that he had some concerns about how this affected Mangum's credibility--but Nifong never expressed any.

Was asked to come to the Elmostafa trial by Linwood Wilson.

Williamson: Who decided to go to the grand jury to seek an indictment? Himan: Mr. Nifong.

General summary: Nifong's lawyers didn't dispute anything Himan said yesterday. The strategy seemed to be to just throw out as much general dirty laundry about the team as possible.

DNC panelists makes clear from Himan that Nifong knew about all Mangum's inconsistent statements before indictments.

UNC medical records to which Nifong had access: as of March 15, says that she was drunk and felt no pain. Inconsistent with what she told Himan the next day.

Also clear that Nifong knew of "long psychological history" from UNC medical files.

The Times Party Line

Even to the end, the Times finds a way to get its preferred narrative into its Duke coverage. From today's Duff Wilson story, this grammatically awkward sentence:

The case was overlaid with charges of racism and class privilege because the stripper was black and poor, inflamed the community and much of the nation.

And Wilson ends the story not with a Nifong vignette but by mentioning the expulsion of "Victoria Peterson, a black activist from Durham." Note that she was identified as a "black activist" and not as the former co-chair of Nifong's citizens' committee.

Himan's Home Runs

Nifong attorney David Freedman has promised a “blame-the-police” defense today, informing WRAL last night that “there’s a lot more information the investigator [Ben Himan] has to add on cross-examination.”

That said, unless he comes totally unglued in the cross-examination, Himan struck some piercing holes in what remains of Mike Nifong’s defense yesterday.

1.) Nifong can no longer claim—as he sometimes suggested in his responses to the Bar’s charges—that his preprimary publicity barrage was caused by receiving faulty information from the police that a rape certainly occurred.

Contrast yesterday’s most dramatic moment with the verbal record.

On March 27, Nifong had a meeting with Himan and Sgt. Mark Gottlieb, conceded the inconsistencies in Crystal Mangum’s stories, and privately remarked, “You know we’re fucked.”

That same day, the disgraced DA gave interviews to the local CBS, NBC, and ABC stations, stating:

• “There’s a good chance if someone had spoken up and said, ‘You can’t do this,’ it might not have happened.”
  

• “In this case, where you have the act of rape—essentially a gang rape—is bad enough in and of itself, but when it’s made with racial with racial epithets against the victim, I mean, it’s just absolutely unconscionable . . . The contempt that was shown for the victim, based on her race was totally abhorrent. It adds another layer of reprehensibleness, to a crime that already reprehensible.”
  

• “The information that I have does lead me to conclude that a rape did occur. I’m making a statement to the Durham community and, as a citizen of Durham, I am making a statement for the Durham community. This is not the kind of activity we condone, and it must be dealt with quickly and harshly.”

2.) Nifong’s DNA difficulties got much bigger.

Nifong has consistently tried to claim that the Meehan May 12 report was not a “final report,” but merely an interim document, with a final document to come at a to-be-determined time that, apparently, only he knew.

Himan’s testimony, however, appeared to contradict this claim: he noted that at their May 12 meeting, Meehan “had a final report ready that day.” Nifong’s only objection? It was improperly dated—May 11, rather than May 12.

Himan’s recollections confirmed an item that had come up during Wade Smith’s testimony, in which it became clear that Nifong had consented to a court order last fall declaring Meehan’s report to be “final.”

The Himan testimony also revealed some remarkable inconsistencies in the Nifong approach to DNA. On April 10, Nifong learned that no DNA matched either Reade Seligmann or Collin Finnerty, and that the DNA of multiple unidentified males was found on Crystal Mangum.

The result? These findings appeared to have no effect.

On April 21, however, Nifong learned that Dave Evans couldn’t be excluded as a partial match to fingernails found in his trashcan.

The result? On ride back to Durham, Nifong said that these findings justified an indictment of Evans, even though Mangum had claimed he had a mustache.

3.) At the time that Nifong sought indictments against Reade Seligmann, police had no idea whether or not Seligmann even attended the party.

The DA’s blasé response to his problem: ignore it. “If you believe her story in one part, you’ve got to believe her story in another part.” He doesn’t seem to have considered that having one part of Mangum’s story impossible to prove might have raised questions about the rest of that story.

---------

The body language gave a sense of the atmosphere. After adjournment (which followed Himan’s direct testimony), a brief discussion between the lawyers and the DHC panel occurred. At that point, nearly everyone was out of their seats, milling about the room and preparing to leave.

Yet Nifong’s row of spectators (wife Cy Gurney; a friend of Gurney’s; Nifong’s brother and sister) all sat stone-faced, looking straight ahead. Nifong, meanwhile, leaned back in his chair, gazing up at the ceiling with a pen propping up his chin.

Joe Cheshire summed up the revelations: he termed Himan’s portrayal of Nifong’s conduct “chilling.”

N&O Video Gallery

The N&O has a video gallery up of today's proceedings.

Himan Bombshells

Gottlieb and Soucie, after meeting with Nifong, report that Nifong said he wanted to go ahead with indictments. Himan: "With what?"

Nifong brought up inconsistencies in Mangum's stories. He made the comment, "You know we're fucked."

Meehan at May 12 meeting: "He had a final report ready that day."

On ride back to Durham, Nifong says that the fingernails evidence can be used to indict Dave Evans. Nifong was the person who made this decision.

"Sgt. Gottlieb advised me that before we were going to do anything," Nifong wanted to be advised and had to go through Nifong.

Meets individually with Nifong to discuss his concerns with decision to go ahead with indictments. Nifong: "If you believe her story in one part, you've got to believe her story in another part."

No advance notice that Linwood Wilson would interview Crystal Mangum. "Shocked" and "a little upset" that he was not notified of the interview. Finds out about the interview the next day, between 11.15am-11.30am--just before rape charges were dropped.

Had a conversation with Linwood Wilson just after reading notes of Wilson's interview. Said that the Wilson-Mangum new version of events "didn't make any sense."

Agreed with decision to dismiss charges: "From the interviews, it was clear she was lying."

Himan Testimony

Assigned to the case on March 16 by Sgt. Gottlieb.

Says he would not have documented meetings or discussions with Nifong.

Doug Brocker is walking Himan through the early police reports showing that Mangum denied rape or made wholly non-credible claims.

The Christopher Day report--that Mangum said she was raped by 20 people--came from overhearing Sgt. Shelton on the phone at the Duke Hospital. Himan did not deny its validity.

Himan says that he didn't include the description of the three suspects (from his handwritten notes) in his typewritten notes because they were so vague they didn't even merit inclusion.

Doug Brocker has done a very good job of showing the lacrosse players were cooperative, and that there was no way Nifong could have been able to have spoken with such certainty that a crime had occurred based on the information he possessed at the time.

Roberts: Himan got a sense that she was a rather evasive person. Himan concedes that Roberts statement not consistent with Mangum's allegation of rape.

Reviews Levicy report noting that Mangum said no condom used in assault.

"Sgt. Gottlieb advised me that before we were going to do anything," Nifong wanted to be advised and had to go through Nifong.

Meets with Nifong at Nifong's request to go over the case--meeting occurred on or about March 27. Gottlieb, Himan, and Nifong at briefing, in DA's office.

At this initial briefing, discussed: execution of search warrant; complete cooperation of three residents of 610 N Buchanan; interview with Kim Roberts and Roberts' complete denial; failure of Mangum to identify in any of the initial photo array; that there was no one at party who made statement corroborating Mangum's statement about rape.

Nifong brought up inconsistencies in Mangum's stories. He made the comment, "You know we're fucked."

Nifong also brings up inconsistencies regarding Mangum's use of alcohol the night of the party--Nifong doesn't say how he was aware of this.

Met with Nifong daily or every couple of days during early stages of investigation.

Nifong always said that this would be a circumstantial case; consistently said would be difficult to prove the allegations.

As of March 31, Himan concedes investigation was at a "standstill."

Nifong gave instruction on how the April 4 array was to be conducted; Gottlieb then goes along. Nifong makes decision on what pictures he wants included in array.

After the 4-4 array, Nifong, through Officer Soucie, said that he wanted a timeline of Mangum's previous activities, as way of determining whether vaginal edema might have come from another source.

At meetings with Meehan, gave updates on what they had found and what these findings meant. April 10 meeting: no DNA from any Duke lacrosse players on the rape kit. Says there was additional male DNA at either the 4-10 or 4-21 meeting--subsequently concedes this information was provided by Dr. Meehan on April 10.

After 4-10 meeting says tests had no matches to lacrosse players, Nifong says he wants everything (not just SANE kit) brought over to DNA Securities for testing.

On ride back to Durham, Nifong says that the fingernails evidence can be used to indict Dave Evans. Nifong was the person who made this decision.

Meehan at May 12 meeting: "He had a final report ready that day." Meehan goes through the written report--the entire report--at the May 12 meeting. Himan believes that Nifong was engaged at the meeting--asked some questions--though doesn't recall which questions Nifong asked.

Had concerns about going forward with indictment of Reade Seligmann--"we didn't have any facts that he was there" at the party.

Gottlieb and Soucie, after meeting with Nifong, report that Nifong said he wanted to go ahead with indictments. Himan: "With what?"

Gottlieb said he had expressed similar concerns to Capt. Lamb and Lt. Ripberger, in conference call with Nifong.

Meets individually with Nifong to discuss his concerns with decision to go ahead with indictments. Nifong says must go ahead. Himan then tried to contact players' attorneys, attempting to determine whether or not they were at parties. Contacted Bob Ekstrand. Tried to "work from the bottom up"--this led to the nighttime sojourn to the Duke University campus.

Received info re: Michael Young, Brad Ross, Adam Langley, that all were not there. This occurred before the party.

Was engaging in this activity because "I didn't want to indict somebody that shouldn't have been indicted." Was at the office until 10pm the night before indictments trying to gather exculpatory evidence working with Samantha Ekstrand.

--

Elmostafa warrant originally brought up in meeting with Nifong and Linwood Wilson--after Nifong left the meeting, Linwood Wilson told Himan about warrant and said he wanted Elmostafa picked up. Wilson stops by his office the next day and says that Nifong wants Elmostafa to be picked up as soon as Elmostafa arrested. Wilson said that he had been doign "further background work" on Elmostafa.

At that meeting, Wilson says that Nifong wanted to be notified as soon as warrant served.

--

No advance notice that Linwood Wilson would interview Crystal Mangum. "Shocked" and "a little upset" that he was not notified of the interview. Finds out about the interview the next day, between 11.15am-11.30am--just before rape charges were dropped.

Had a conversation with Linwood Wilson just after reading notes of Wilson's interview. Said that the Wilson-Mangum new version of events "didn't make any sense."

Urged to Wilson that they should re-interview Mangum; this re-interview never occurred.

Involved in re-interview of Tara Levicy: Wilson raises issue of possible condom use in the January 2007 re-interview with Levicy. Prior to this interview, there was nothing in the file to indicate that condoms had been used prior to the alleged assault.

Agreed with decision to dismiss charges: "From the interviews, it was clear she was lying."

Victoria Peterson Ejected

Nifong citizens' committee co-chair Victoria Peterson has just been removed from the courtroom, allegedly for threatening a witness. Jackie Brown reports that a security officer witnessed Peterson's behavior, which was wholly unprovoked, and brought it to the attention of authorities with the Bar.

Lane Williamson has just announced that Citizens' Committee co-chair will not be allowed back into proceedings for the rest of the hearing.

Wade Smith Cross-exam

Freedman in the cross-examination is attempting to maintain that the Meehan report actually was complete--and that actions of people other than Nifong caused all the publicity.

Freedman also notes that the defense could have done its own DNA report, and therefore this issue was not a particular problem.

DNA evidence would have made it "almost impossible for Mr. Nifong to have tried this case the old-fashioned way."

Yes--evidence was exculpatory, "with an exclamation point." Critical to showing that Mangum was "extraordinarily active sexually" in the week before the party.

Nifong's "extraordinary calling attention about this matter"--his national TV appearances, describing how it happened, especially the chokehold demonstration.

Affirms the Bar's point that at no point did Nifong object to the language of a court order that the DNA Security report was a "final report."

Morning Highlights

The highlights from the morning session:

Wade Smith’s testimony—with typical understatement—created enormous problems for Mike Nifong. Smith’s recapitulation of the Dec. 15 hearing? Nifong denied knowing about the additional DNA evidence in chambers; said nothing in court once the additional material was revealed; and then gave a press conference immediately afterwards affirming that he did know about the matter but kept the material out of the report for privacy concerns.

Smith also used his prestige to considerable effect, noting at least twice that he had never encountered a prosecutor who behaved in any way like Nifong in his more than 40 years’ experience as a member of the North Carolina bar.

The opening statement by Mike Nifong’s attorney, David Freedman, meandered between attempting to retry the lacrosse case and attempting to claim that even if Nifong were guilty as charged, he’s basically an ethical guy who shouldn’t be severely punished.

His most mindboggling line of defense: that Dr. Meehan made the statements he did in the Dec. 15 cross-examination from Brad Bannon because Nifong had not “prepped” Meehan. How, it could be wondered, would “prepping” Meehan have made the lab director more likely to tell the truth?

The runner-up in the mindboggling category: that Nifong had a routine practice as a prosecutor of turning over material to defense attorneys without reading it, and so might not have realized that the May 12 DNA Security report was incomplete.

Freedman also made several statements that appeared to “discover” items not in the case file. He said that police had interviewed people nearby the lacrosse house on the night of the 14^th, and that these “witnesses” told the police that racial slurs were used. Yet the only such witness was the neighbor, Jason Bissey. Bissey’s recollected remark (the “cotton shirt” comment) was highly crude, though not a remark that normally is associated with a racial slur. Who are these mystery witnesses? Who knows?

Freedman also claimed that Mike Nifong felt comfortable asserting that a crime occurred because the three captains, in their March 16 statements, unintentionally corroborated Crystal Mangum’s claim that she was threatened with a broomstick.

Yet Mangum never made this claim to SANE nurse-in-training Tara Levicy, nor to any other law enforcement official, on March 14^th. Nor did the reports of either Officer Himan or Sgt. Gottlieb indicate she made such a statement on March 16^th. (Mangum did make this assertion well after the fact, on April 6^th.) So how did the captains’ statements confirm a claim that Mangum already had made? Freedman didn’t say.

Other items: in Nifong’s row were wife Cy Gurney; a campaign volunteer, Suzanne; Nifong’s brother, sister, and son. Victoria Peterson didn’t arrive early enough to gain entry (and apparently raised quite a ruckus) but made it into the courtroom after the break.

Wade Smith Testimony

Met with Nifong 4-13: Nifong not interested in dialogue or slowing down; said that he knew more about the case than they did. Nifong "extraordinarily agitated and upset"--ended meeting with expletive directed at Joe Cheshire.

Was following the case even before involved--Nifong statements "way beyond what a trial lawyer should be permitted to say."

May hearing had "chaotic feeling."

Nifong statements "took this case out of the court system and deposited it in the hands of the public."

Had never seen anything like Nifong's derisive laughter at Kirk Osborn when Osborn said that Reade Seligmann had an airtight alibi. [Nifong was smirking as Smith recalled this story.]

Smith is now walking the panel through the case, speaking about the various discovery requests that the defense had filed, and Nifong's consistent non-responses when he was asked if there were additional material beyond what had been included in the Meehan report.

Defense DNA motion--Nifong never contacted any defense attorney between the 13th and the 15th; in meeting in chambers before hearing, Nifong feigned complete surprise about material that the defense DNA motion contained.

Pleased when AG took over the case because confident that case would be heard "fairly."

"We believed that the AG would be unbiased and fair."

"We believed that when Reade Seligmann's alibi was put out and Elmostafa was arrested, that efforts were made to attack that information. We knew that Crystal Mangum had come somehow nine months later, in December, to give entirely new factual information, to contest Reade Seligmann's alibi. We knew that wasn't going to happen with the attorney general."

Asked if he ever had dealt with anything like Nifong as prosecutor--said no.

Freedman Statement

Case is not about innocence. Also Nifong had duty to pursue case that he believed in. Issue is whether Nifong committed any intentional or even negligent violations. Not in any way disagreeing with AG's conclusions, but important to go back to see Nifong's mindset.

Nifong a career ass't prosecutor, but didn't have experience as DA. Had been out of regular rotation for trying cases. "Vastly experienced" in court system but "extremely inexperienced" in running the office.

Information that Nifong learned--Mangum did make accusations, and everyone was gone from the house, when the police came back. This naturally raised suspicions of law enforcement.

Police interviewed some of the people on the street--witnesses on the street told investigators that they heard racial slurs. Nifong didn't inject race.

"No evidence--none" of any agreement between Nifong and anyone else to exclude evidence.

[Who are these witnesses?]

Mangum then taken to Tara Levicy--she determined that Mangum acting consistently with someone who was sexually assaulted. Levicy will testify on Nifong's behalf.

Three captains made statements that corroborated Mangum's--broomstick and racial comment. Then they find McFadyen e-mail.

[But, of course, McFadyen email not turned over to the 27th--after Roberts statement, after Mangum's non-IDs.]

Nifong was not making statements with intent to prejudice jury, since no one had been charged. Felt that "he needed to solve this crime."

[Isn't that the job of the police?]

Statements were clearly "outlandish," in retrospect. 98 percent of Nifong's statements were between March 27 and April 4. Did not want to make comments once individual charged.

April 4 photo array: Nifong compares 4-4 statement to "yearbook" photos. This is why he taped it--wanted to protect the defendants!!

Purpose of 4-4 photo array was try to locate witnesses and solve the crime.

Concedes that Himan told Nifong that he had doubts about the Seligmann indictment. Nifong response: "if you believe her on Finnerty, then you have to believe her on Seligmann." Nifong did not generate warrant on his own.

Police were not instructed as to how to present the case. [This is the blame the police defense.]

[Although Freedman says his goal isn't to challenge the AG's conclusions, it sure sounds as if that's what he's doing.]

Blames Meehan--Nifong didn't generate that report, and grand jury came back with probable cause.

DNA crux of the case: "what did Mr. Nifong know and when did he know it?"

Concedes that Nifong did meet with Meehan on 4-10--despite Nifong's previous denial.

Nifong had never used Meehan before. Nifong never asked Meehan to exclude anything from his report. Nifong never told Meehan how to write report.

[This is the blame-Meehan defense.]

Nifong--"at a minimum," told Meehan, needed matches--not an attempt to exclude, attempt to protect privacy of DNA profiles.

meehan mentions "non-probative" evidence in his report--what he means was all the DNA evidence that he excluded. Meehan chose the words, not Nifong.

Meehan and Nifong considered this as an "interim report"--discovery an ongoing process.

Nifong always a believer in open-file discovery. Always turned over reports to defense--just gave it over without really looking at report.

Appears to be claiming that Nifong didn't read the report--"as he did not look at any of the other discovery, he pretty much just turned it over." (!!)

DNA evidence was "extremely weak profile." "Mr. Nifong perhaps should have thought more of that evidence."

At the time, Nifong didn't understand the evidence--this is why he didn't turn it over.

[New excuses--a) Nifong didn't understand DNA; b) as part of his longstanding practice, Nifong didn't read reports that he had turned over.]

Defense got exculpatory evidence because Nifong turned it over. Nifong believed that DNA evidence was being turned over to defense experts--no worry about whether it would be understood.

Dec. 15th hearing--Meehan "wasn't prepped." (!!!)

meehan was "all over the place" on the Dec. 15th hearing.

'Law was in a state of flex at that point." Position Nifong was arguing was consistent with what AG had told DA's had to do.

[Blame the AG defense.]

"Look at the man, look at his career, look at what he had on his plate." "Nothing political about Mike Nifong."

Nifong didn't create media interest--didn't ask for media to come down to NC--and quit talking about the case in early April, which didn't dissuade media interest.

Jean Statement

March 27--Nifong learns that Mangum had twice recanted, learns that she had said 3, 5, and 20 people assaulted her; learns that three captains had cooperated; meeting came at Nifong's urging.

Nifong goes from that meeting to give a variety of public statements--at odds with what he had been told by Himan and Gottlieb--Jean goes through Nifong pre-publicity barrage, expressing Mangum's belief as fact. Jean mentions chokehold appearance.

During this barrage of interviews, Nifong met with Gottlieb and Himan and acknowledged there were serious problems with the case--first time this was revealed.

Nifong learns of the SBI testing on March 30--next day, gives an interview saying he doesn't know results of DNA test--but does reverse his perspective on DNA's value in interviews.

April 10--Nifong meeting with Meehan--Meehan tells them that their testing has revealed presence of non-lacrosse player DNA, but definitely no lacrosse players.

before April 17, Himan speaks to Nifong--Himan expresses grave concerns about going forward with indictments of Seligmann and Finnerty--Nifong says to go ahead anyway, even though the police had no evidence that Seligmann was even present. Himan goes to superiors to express concerns--they go to Nifong--Nifong overrules them.

April 21: Meehan tells Nifong that one of the profiles matched Mangum's boyfriend, April 21--Nifong tells Meehan to prepare a report.

May 12: final meeting with Meehan. Meehan again explained that DNA from unidentified males--but provides report that Nifong had requested, matches only.

Jean notes defense desire for everything from DNA Security--but never provided anything about conversations with Meehan, and never provided complete results of DNA Security Tests. This shows importance of Finnerty defense team requests, which had been remarkably comprehensive.

June 22: Nifong maintains that all conversations with Meehan non-discoverable work product, and that didn't discuss any evidentiary matters. Nifong did not comply with Stephens order for witness statement from Meehan, nor results of meetings with Meehan.

Sept. hearing: Nifong doesn't respond truthfully to Smith statement.

Dec. 15: meeting in chambers in judge. Nifong at the meeting with Smith doesn't say he knew about the non-lacrosse player male DNA. If innocent, why would Nifong have not volunteered that he already knew about this information?

At time of Dec. 15 hearing, Bar had already sent letter of notice about pre-primary statements.

Nifong gives variety of excuses for why he didn't turn over DNA.

Nifong's conduct did heighten condemnation of accused--and did harm administration of justice. Nifong intentionally misled the media, stoked racial discord, intentionally concealed evidence, and made false representations to two judges.

Harm to the three young men and to NC justice system harmful. Public perception is that NC justice system has no integrity.

In the Courtroom

Ben Himan just made an appearance with the Bar's prosecutors, as they prepare their PowerPoint presentations.

The hearing room is currently standing room only, nearly 45 minutes before the start of the session.

Anne Blythe is here to cover for the N&O; Cy Gurney has just arrived as well.

Nifong's Guessing Game

There seems little doubt that Mike Nifong will play the “Blame Game” in his ethics trial, scheduled to begin this morning at 10am. The Durham Police, especially Officer Ben Himan and Sgt. Mark Gottlieb, appear to be his likeliest target. Nifong also has strongly suggested that he will allege selective prosecution. And enablers of the DA have floated the argument that he should be forgiven for any ethical improprieties since he had faced no previous ethics allegation.

While these lines of defense are all easy to predict, it’s harder to determine how Nifong will respond to the Bar’s allegation that he conspired with Dr. Brian Meehan to withhold exculpatory DNA evidence. He has offered no fewer than thirteen separate explanations—some of which are mutually contradictory—on this issue. Below is a list, with comments on what the Disciplinary Hearing Commission would have to decide to uphold Nifong’s viewpoint.

(1) He absolutely did not know about Meehan’s exculpatory test results: “The first that I heard of this particular situation was when I was served with these reports—this motion on Wednesday of this week.” (December 15, morning, in court) Upholding this excuse would require the Disciplinary Hearing Commission to ignore Nifong’s subsequent interview with the press outside the courtroom, and then with the New York Times.

(2) He absolutely did know about the results, but deliberately agreed to withhold the information for privacy reasons: “We were trying to, just as Dr. Meehan said, trying to avoid dragging any names through the mud.” (December 15, afternoon press conference) Upholding this excuse would require the Disciplinary Hearing Commission to ignore the fact that Meehan’s report did mention the names of at least two then-unindicted players, suggesting that whatever motivated both the doctor and the DA, privacy wasn't a main concern.

(3) He might or might not have known about the results, but was overworked: “You know, it’s not the only case I have right now. I have two. The other one’s a quadruple homicide [which arrived in his office in mid-October].” (December 23, New York Times) Upholding this excuse would require the Disciplinary Hearing Commission to decide that the state’s Open Discovery law—and, indeed, the terms of the ethics code—do not apply to any prosecutor that is handling more than one case.

(4) He might or might not have known about the results, but, distracted by political concerns, did not provide them: “Because I had never previously been involved in a political campaign, and because I was facing an unusually contentious challenge from an unprecedented number of challengers [two!], I was not always able to give the case my full attention.” (December 28, Nifong letter to bar) Upholding this excuse would require the Disciplinary Hearing Commission to decide that neither the state’s Open Discovery law nor the terms of the ethics code apply in election years.

(5) He might or might not have known about the results, but, because of the incompetence of his underlings, did not provide them: “Due to the volume of material to be copied for each defendant . . . several individuals, including both attorneys and support staff, were involved in the numbering and copying of pages, which was not supervised by me. These people were . . . [not] familiar enough with the facts of the case to have known whether anything was missing.” (December 28, Nifong letter to bar) Upholding this excuse would require the Disciplinary Hearing Commission to decide that neither state’s Open Discovery law nor the terms of the ethics code apply for poorly administered prosecutors’ offices.

(6) Since these incidents occurred in Judge Smith’s courtroom, and Smith neither sanctioned him nor filed an ethics complaint against him, his actions must have been acceptable. (December 28, Nifong letter to bar) Upholding this excuse would require the Disciplinary Hearing Commission to ignore Smith’s recent memorandum.

(7) He’s being held to a different standard than others: “For some time now, the ‘word on the street’ in prosecutorial circles has been that the North Carolina State Bar, stung by the criticism resulting from past decisions involving former prosecutors with names like Hoke and Graves and Honeycutt and Brewer, is looking for a prosecutor of which to make an example.” (December 28, Nifong letter to bar) Upholding this excuse would require the Disciplinary Hearing Commission to decide that because it applied overly lenient punishments in the Gell and Honeycutt cases, it is obligated to let every other prosecutor in the state get away with ethics violations.

(8) People are out to get him: “A well-connected and well-financed (but not, I would suggest, well-intentioned) group of individuals—most of whom are neither in nor from North Carolina—have taken it upon themselves to ensure that this case never reaches trial. (And if this seems like paranoid delusion to you, perhaps you should check out websites such as former Duke Law School graduate and current Maryland attorney Jason Trumpbour’s www.friendsofdukeuniversity.blogspot.com/, which has not only called for me to be investigated, removed from this case, and disbarred, but has also provided instructions on how to request such actions and to whom those requests should be sent.)” (December 28, Nifong letter to bar) Upholding this excuse would require the Disciplinary Hearing Commission to abandon common sense.

(9) He didn’t have to turn over any material until a trial date was set. This argument especially appealed to one of Nifong’s last enablers—the Herald-Sun editorial page—in the days before the H-S, too, abandoned the DA. Upholding this excuse would require the Disciplinary Hearing Commission to decide that neither the state’s Open Discovery law nor the terms of the ethics code apply in cases where defendants enter into plea bargains.

(10) The one-sided nature of the report is irrelevant, since Nifong knew he would have to turn over the underlying data, which is easily understood. (January 16, Nifong letter to bar) Upholding this excuse would require the Disciplinary Hearing Commission to approve “separate-but-equal” justice, in which defendants who lacked the resources to hire good attorneys or experts would be out of luck. It’s worth remembering that this argument came from the person who, for the last fifteen months, was propped up by the state NAACP.

(11) The issue is irrelevant, since he wasn’t required to turn over a “complete report,” at any stage of the process. Upholding this excuse would require the Disciplinary Hearing Commission to engage in statutory interpretation, and to suggest that when the legislature wrote a law saying that the state needed to turn over a report of all test results from an NTO, the legislature didn’t really mean “report.”

(12) He wasn’t paying attention to potentially exculpatory evidence. In his final meeting with Dr. Meehan, stated Nifong, “I was instead particularly focused on the finding [sic] of DNA consistent with that of David Evans on the false fingernail,” and as a result did not give “the actual written report much more than a cursory inspection a this time.” Upholding this excuse would require the Disciplinary Hearing Commission to rule that prosecutors are not bound by Rule 3.8, comment 1, which requires the DA to examine all evidence, since “a prosecutor has the responsibility of a minister of justice and not simply that of an advocate; the prosecutor's duty is to seek justice, not merely to convict.”

(13) In a preview of the Baker/Chalmers report’s argument, it was the defense’s fault: “My failure to provide the data underlying the test results initially was based on the fact that the defense had not yet asked for it.” (January 16, Nifong letter to bar) Upholding this excuse would require the Disciplinary Hearing Commission to rule that prosecutors are not bound by the state law requiring all test results from an NTO to be turned over to the subjects as soon as those results are available.

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Which of these rationalizations will Nifong offer this week? Or will he come up with a new explanation entirely?

Coverage of today’s hearing is available online at WRAL and News14; Court TV plans to televise the morning proceedings, with afternoon coverage on its website.

Forthcoming

Perhaps trying to smooth the way for a Nifong resignation to cover its own shameful editorial record, the Herald-Sun calls for the embattled DA to resign.

City Councilman Eugene Brown blasts David Addison's stunning letter accusing the DPD's critics of slander. "Our job as a city council is to try to get to the truth, as painful as that may be,” Brown said. “This was definitely overboard and I was shocked.”

And, as usual, Aaron Beard has a comprehensive overview of events, in which longtime Nifong enabler Woody Vann laments, "Nobody knows anything about the previous 28 years. The cases he's tried and won, and the cases he's tried well and won."

Blame the Bar

As we advance toward tomorrow's hearing, it’s worth keeping in mind the defenses that Mike Nifong already has offered regarding his dubious behavior—as a possible preview of what we’ll see starting tomorrow.

When he’s not tried to blame his problems on faulty information from the Durham Police, Nifong has lashed out at the State Bar. In his December 28 letter to the Bar, the embattled district attorney asserted, “For some time now, the ‘word on the street’ in prosecutorial circles has been that the North Carolina State Bar, stung by the criticism resulting from past decisions involving former prosecutors with names like Hoke and Graves and Honeycutt and Brewer, is looking for a prosecutor of which to make an example.”

In other words, Nifong is being held to a different standard than other North Carolina prosecutors.

In early March, one of Nifong’s last bastions of support—the Herald-Sun editorial page—picked up the theme. Pointing to the Gell and Honeycutt cases, the H-S reasoned, “In both cases, prosecutorial misconduct robbed defendants of years of their lives. For their misdeed the prosecutors were punished by taps on the wrist—or nothing at all. Nifong certainly made mistakes, as he concedes, but no one has been wrongly convicted, and no trial has been held.”

And this theme resurfaced in an article yesterday by the H-S’ John Stevenson, who spoke with a longtime Nifong supporter, Mark Edwards:

The State Bar, he suggested, needs to repair its image after taking virtually no action against two other prosecutors who withheld evidence favorable to a murder defendant nine years ago, sending the defendant to prison for years. The defendant, Alan Gell, later was acquitted in a new trial.

According to Edwards, Nifong “may have to pay not only for his own sins, but also for the sins of those who went before him.”

The basic line: what Nifong did wasn't that bad, and the Bar has treated him unfairly.

On the Bookshelf

Two books on the case will be officially released tomorrow. It’s Not About the Truth, co-authored by Don Yaeger and former coach Mike Pressler, offers a behind-the-scenes look at how everything that’s happened since last March affected Pressler, his family, and the senior class he had recruited to Duke. The book also provides background on the Duke lacrosse program, Durham, Crystal Mangum, Mike Nifong, and a summary of the case.

I was especially pleased to see a nuanced, sensitive portrayal of Sue Pressler, someone who has been a tower of strength over the last 15 months. Despite having every reason to respond to developments with bitterness, she’s done exactly the opposite, showing extraordinary class and grace.

A Rush to Injustice, co-authored by Nader Baydoun and R. Stephanie Good, has a few revelations, although it’s more of a personal memoir about how a Duke graduate came to view with distaste the actions of his university.

Today’s post will touch on the new items from the two books dealing with the legal and police aspects of the case; next week, after the Nifong trial, a similar post will examine some of the revelations regarding Duke.

Nifong’s Personality

Both books portray Nifong as a man with deep character flaws.

Three especially revealing vignettes:

1.) The Yaeger/Pressler book tells the story of Nifong, then traffic court czar, getting into an argument with a visitor from Chicago who had received a traffic ticket. The visitor wanted to settle the matter before heading home, so he wouldn’t have to return to Durham; Nifong, on the other hand, was incensed at having his lunch interrupted and started berating the man. (Sound familiar?) Exasperated, the visitor asked who Nifong was.

Nifong’s response? “My name is Mike Nifong and I am the Chief Asshole of the Durham County district attorney’s office.”

(Freda Black recalled that “a lot of people thought he was being paid too much to negotiate traffic tickets.”)

2.) Baydoun is the only author, it seems, to whom Wes Covington has spoken (Covington declined several requests from Stuart Taylor to be interviewed for our book). Covington told the story of a Duke undergraduate who had interned in Nifong’s office. On his first day, the student introduced himself and reached out his hand to Nifong.

Nifong’s response? “I don’t shake hands with interns.”

3.) Freda Black (admittedly not a dispassionate observer) commented on Nifong’s general trial strategy.

Nifong, she recalled, “didn’t really like to prepare very much for a case. He found it be thrilling to just sort of go and do it off the cuff.” This, certainly, appeared to be his approach to the lacrosse case.

Butch Williams observed, “Traditionally, he’s always been number two in a sled dog crew. When Nifong became number one, he still thought like number two. He didn’t know how to navigate those curves and took the sled right over the hill.”

Durham political consultant Brad Crone sounded the same theme to Don Yaeger, terming Nifong “aloof, arrogant, and very standoffish. He’s not the type of guy you would want to go have a beer with. And he enjoys being a prick.”

Nifong and the Case

The Baydoun book recounts several heretofore unrevealed conversations between Sgt. Mark Gottlieb and Covington. (Covington, by the way, comes across as clueless—he still was telling the non-captains on March 24 that they didn’t need lawyers.)

Gottlieb complained that he was being pressured by D.A.’s office to get the players in sooner rather than later. He also told Covington that the Nifong’s office had told him he had to get order.

This portrayal of events, of course, flies in the face of Nifong’s apparent strategy to blame his ethics difficulties on the DPD.

In the Baydoun book, Bob Ekstrand also states that Nifong, incredibly, wanted to arrange the arrests of Reade Seligmann and Collin Finnerty while they were in class—so the entire affair could be covered by the national press. This gambit was too much even for Judge Ron Stephens, who blocked it.

Also, Ekstrand’s investigator was the first person to speak with Angel Altmon (the Kroger’s security guard who encountered Kim Roberts and Mangum after the party). The investigatory asked Altmon if Mangum could have been raped; Altmon responded, “Ain’t no way.”

Neither Nifong nor the police have explained why they didn’t speak with Altmon—this blasé approach certainly contrasts with the claims from the Baker/Chalmers report that the DPD eagerly sought exculpatory evidence.

Crystal Mangum

The Yaeger/Pressler book has the most detail of anything yet to appear on Mangum’s pre-party activities and reputation. The always quotable Butch Williams mocked the early media coverage of the case, whose tenor was set in the deeply flawed Samiha Khanna interview, which made Crystal look like “Sweet Polly Purebred, who met some hooligans that took advantage of her.” Williams was blunt: “C’mon, kids. She wasn’t this little poor North Carolina Central student working the fields. She was a whore.”

Joe Cheshire, meanwhile, shared some of the results from defense research: namely that Mangum rarely saw her children, and that the defense couldn’t even prove that she was a fulltime student at NCCU. Given the schedule described in the various police statements on the case, it seems inconceivable that she could have been going to class fulltime.

Yaeger also obtained an interview with H.P. (“Fats”) Thomas, the former security manager at Mangum’s strip club. Thomas described Mangum as “more of a hooker than a stripper. She was stripping as advertising for hooking.” If that portrayal sounds familiar, it should: it corroborates Kim Roberts’ March 22, 2006 statement that Mangum wanted to return to the lacrosse house to make more money.

“This girl,” said Thomas, “is a professional streetwalker from Raleigh. She would do things for twenty, thirty, forty dollars.” Given her emotional instability, she was a ticking time bomb: “That could’ve been any one of us. These boys just ended up with the wrong stripper. Forget white or black for a minute. That could’ve been any one of us.”

In this week’s ethics trial, will Nifong claim that the police didn’t tell him of Mangum’s reputation before he launched his pre-primary publicity barrage claiming that “diffuse edema of the vaginal walls” provided conclusive medical proof of a gang rape?

Blame the Police

As we advance toward Tuesday's hearing, it's worth keeping in mind the defenses that Mike Nifong already has offered regarding his dubious behavior. Nifong attorneys David Freedman and Dudley Witt face a difficult task--while they can try to blame Dr. Brian Meehan for the DNA concealment, for instance, Meehan's behavior gives them no assistance in trying to rebut the Bar's charges of violating the rules against pre-trial publicity.

But there is one group mentioned as a scapegoat in both elements of the Nifong defense--the Durham Police Department. (This Nifong strategy makes the DPD's defense of Nifong in the Baker/Chalmers report all the more inexplicable.)

A critical element of Nifong's DNA defense appears to be that Officer Ben Himan and Sgt. Mark Gottlieb were lying in their case notes, when they stated that Nifong had attended an April 10, 2006 meeting with Dr. Meehan. The usefulness: this version of history allows him to contend that he sought indictments against Reade Seligmann and Collin Finnerty without knowing any of the Meehan test results. (This argument requires Nifong also to claim that neither Gottlieb nor Himan told him about the April 10, 2006 meeting before the grand jury session.)

Meanwhile, Nifong has tried to deflect blame for his inflammatory pre-primary publicity barrage on the DPD. His statements, he has claimed, were simply an "effort to obtain assistance in receiving evidence and information necessary to further the criminal investigation." Translation: the DPD hadn't done its job in getting enough evidence, requiring Nifong to jumpstart the inquiry.

Moreover, Nifong has asserted, everything he said was consistent with information he received from the DPD. He made this argument most clearly regarding his speculation to the Charlotte Observer that Crystal Mangum's attackers might not have used condoms. His comments, Nifong reasoned, were "consistent with the opinion of the SANE nurse who examined [Mangum] on the night of the attack."

Yet at the time the Observer interviewed him, Nifong had never spoken to Tara Levicy, nor had he read her report (which contains nothing, in any case, to substantiate a claim that Mangum asserted condoms might not have been used). The only possible source for this false information? Again, Gottlieb and Himan, who Nifong can suggest provided him with a misleading account of Levicy's report.

Addison: Police Are the Victims

In late March and early April, Cpl. David Addison was a ubiquitous presence in coverage of the lacrosse case.

• “You are looking at one victim brutally raped. If that was someone else’s daughter, child, I don’t think 46 (tests) would be a large enough number to figure out exactly who did it.” (WRAL, March 24)

• “Addison said police approached the lacrosse team with the five-page search warrant on March 16, but that all of the members refused to cooperate with the investigation.” (Herald-Sun, March 25)

• “We’re asking someone from the lacrosse team to step forward . . . We will be relentless in finding out who committed this crime.” (N&O, March 25)

• “Addison said police can’t force samples from anyone they believe to be implicated in a crime. But he said that, in this situation, there was ‘really, really strong physical evidence.’” (Herald-Sun, March 25)

• “We’re not saying that all 46 were involved. But we do know that some of the players inside that house on that evening knew what transpired and we need them to come forward.” (ABC, March 26)

• “Although we have received many calls expressing concerns and anger about this incident, we have not received any calls which will allow us to assist in resolving this case. We are extending our plea for information and help to our Duke family, who are also part of our community.” (WRAL, March 28)

Since this barrage of demonstrably false statements, Addison has fallen quiet on the case, consistently refusing all comment—until now. In a letter in today’s Herald-Sun, he claims that he and his fellow officers of the Durham Police Department (the department that helped obtain the indictments of three people without probable cause) are the true victims of the case:

The Durham Police Department has been subjected to yet another round of criticism from the city's leaders. This is like the first round of a fight with Mike Tyson. The decision has already been made.

We continue to stand in silence because our teaching shows us that retaliation does not profit anyone. As we stand bloodied from the slander and vicious attacks, we are just blocking punches. The air of voice is beaten out and the eyes of clarity have been closed. The only things we have left are the legs which are supported by over 500 sworn officers and nearly 200 civilians. We are still able to think but even the referee penalizes us for blows we have not thrown. How much more can we take? A lot, I suspect. However, we cannot and will not subscribe to the philosophy of abuse or continue to be victimized.

It is amazing, or is it just an election year? You decide.

“Slander and vicious attacks.” Addison certainly knows whereof he speaks.

Sunday Review

This marks the 700^th post for the blog. In the upcoming Yaeger/Pressler book, graduated lacrosse player Kyle Dowd provided an excellent, concise, summary of a main theme of the blog, regarding the Group of 88. Said Dowd:

If you look at it, their whole argument is, “We only put that ad out there to start a dialogue about these issues.” The only problem is, you are willing to start dialogue but now you refuse to speak to the media, you refuse to speak to us, you refuse to speak to other professors. So you’ve actually decreased dialogue about these topics, which is in complete contradiction to your original goal.

No matter which way you look at it, they’ve failed.

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For those who missed it, an important post by defense attorney Brad Bannon in the Liestoppers forum:

I have read a lot of comments & commentary critical of Judge Osmond Smith and his conduct in the matters of the State of North Carolina v. Evans, Finnerty, & Seligmann. As someone very close to those cases & the victims of this hoax, I understand the desire to hold accountable those responsible for instigating & perpetuating it. As someone with previous experience before Judge Smith, and as the lawyer on the defense team primarily responsible for pursuing discovery issues at every hearing where Judge Smith presided in the Evans/Finnerty/Seligmann cases, I can assure you that he is not one of those people.

Before Judge Smith took over the cases, Joe Cheshire & I tried a very intense double capital murder trial before him in the summer of 2005 in Raleigh. Judge Smith was an honorable, thoughtful, fair, & truly professional jurist throughout a trial where two young men had lost their lives, one young man was facing the death penalty for that loss, three devastated families filled a very tense courtroom, and emotions continually ran high. In that scenario, Judge Smith showed respect to all persons involved & maintained a dignified courtroom atmosphere that served the process very well. While respectful to both sides, he was partial to neither; he was only partial to the law & to his role as a neutral judge. He exhibited the same high qualities & standards in the several hearings he conducted in the EFS cases. In short, he was—and is—exactly what a judge should be, and the Memorandum he filed in the cause on Tuesday only serves to reinforce my belief in that regard (for whatever my belief on that subject is worth).

There are a number of people whose actions related to the false accusations against Dave, Collin, and Reade deserve significant scrutiny. Osmond Smith is not one of them . . .

I appreciate the comments of everyone on this board. I am not a word policeman & would never purport to tell people how to act or what to think. That said, I believe some may misunderstand the true role of a judge, and that is to be a neutral arbiter of facts & law. It is not to do research on the backgrounds of lawyers & then treat those lawyers differently (better or worse) than their counterparts in the courtroom. The adversarial system of justice rises & falls on the neutrality of the judge that oversees it; those judges are, likewise, bound by the various statutes & rules that give them their authority. While we often see judicial conduct that is anything but neutral, we always hope for it. Osmond Smith more than provided it in this case. I was there for every moment he acted in his official capacity in these matters, whether in open court or in chambers, whether Mike Nifong was the prosecutor or Jim Coman & Mary Winstead were the prosecutors. As it relates specifically to events that transpired on December 15, 2006, the reason Osmond Smith did not act on those events is simple: as the defense lawyers responsible for seeking that action, we have not yet asked him to do so. In fact, on December 15, when he directly asked me at the conclusion of Dr. Meehan's questioning whether we (the defense) were prepared to seek any additional relief based on what had just happened, we specifically told him that we would like to review the transcripts of the hearing before taking such action, and he deferred to that request. I have every reason to believe that, once we do act, Judge Smith will conduct a fair review of any such request (and a hearing, if necessary), and he will do exactly what he honestly believes the law & the facts require.

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This week’s “Only in Durham” award winner is Deputy Police Chief Ron Hodge. Last Tuesday night featured an open hearing for the three finalists for the Police Chief position. While there, Hodge incredibly asserted that he couldn’t think of a case in the past five years in which the DPD made serious mistakes.

Surely, it would seem, he would retreat from such a statement when given time to reflect. Yesterday’s N&O, however, revealed otherwise. Declared Hodge, “I don't see, at the end of the day, whatever is uncovered about what the Durham Police Department did not do as it relates to the Duke lacrosse case will be major.”

City Councilman Eugene Brown noted that when Hodge made his original remarks, “There was laughter, as well there should be.” Brown further observed that “Hodge definitely represents the status quo—that things are fine.”

Jim Cooney added that whatever Hodge seems to think, “There were serious investigative missteps in this case . . . The decision-makers in Durham should think long and hard about choosing anyone who thinks that the police department should continue to conduct this kind of investigation.”

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A good editorial in yesterday’s N&O on the need for a comprehensive inquiry into the Durham Police’s mishandling of the lacrosse case. Both the citizens of Durham and of North Carolina, the editors realized, need “a more forthcoming account of the police department's performance in the case than one issued last month by Police Chief Steve Chalmers,” which “clearly was deficient.” The editors also blast City Manager Patrick Baker’s approach, which “contained a few mild criticisms but otherwise staunchly defended the handling of the case.”

Despite the need for a comprehensive inquiry, the staffing of the committee raises grave concerns. At the bare minimum, acceptance of the complete findings of AG Cooper’s report should be a requirement for service on the commission—a standard that would rule out Councilwoman Diane Catotti’s selection of Aurelia Sands Belle. Committee members also should have no conflicts of interest in dealing with the DPD—a standard that also would rule out . . . Catotti’s selection.

More broadly, the lack of criminal defense attorneys on the panel—an apparent outgrowth of Catotti’s insistence on hard quotas from the Council’s appointments—threaten to render the investigation stillborn before it starts. That the body’s only currently practicing attorney is a graduate of NCCU Law School—home of pro-Nifong commentator Irving Joyner—further calls into question the committee’s partiality.

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Joan Foster turned her attention to Ron Hodge in a witty poem this week.

Meanwhile, an unintentionally humorous verse comes from the blog, “Listening Project,” written by a Duke graduate student. A tribute to Wahneema Lubiano, “All My Affect,” includes such stanzas as:

attention gains wings
and outfits and land
from the way you listen . . .

what was a glass cielding
becomes sturdy enough
to rest books on top of
past our reach

Though the site is allegedly authored by a graduate student in English, the dictionary contains no entry for the word “cielding.”

No sign of whether the UBUNTU dancer will interpret the blog's poems, which also include an item hailing Karla Holloway.

This post, meanwhile, appears as if it could have been penned by Lubiano herself.

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The "Real Social Disaster" site--organized by Duke students seeking an apology from the Group of 88; or, in the alternative, for President Brodhead to stand up for Duke students against the actions of faculty extremists--currently has 994 Duke students. It would be good to see the total reach 1,000.

Of course, no apology will be forthcoming. While the Group was eager to "listen" to a handful of anonymous quotes from alleged Duke students, since those anonymous comments happened to conform to the professors' worldviews, there is no evidence they desire to hear from real Duke students.

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An excellent post from John in Carolina on Greensboro blogger David Boyd--who, appropriately, took to task the Greensboro News & Record for its lightweight coverage of incoming Bennett College president Julianne Malveaux.

Malveaux's "commentary" on the case--in which she wildly asserted, "I think something happened here . . . You may not be able to prove anything. But something did happen here, and it was something wrong"--came just before the announcement of her assuming the presidency. The N&R's summary of this comment?

Her quick wit and words have won her fans — and detractors. Malveaux caught flak in the early 1990s for comments about Supreme Court Justice Clarence Thomas, and more recently, for remarks about the Duke lacrosse case.

N&R editor John Robinson responded, oddly, "Yes, we should have included more on the Duke issue. But, really, we have covered it in earlier papers." The issue wasn't the case itself--it was Malveaux's extremist interpretation of the case. And the N&R, to my knowledge, did not cover Malveaux's interpretation earlier.

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Richard Jencks had a nicely done radio commentary this week, on KSCO AM:

In Spring 2006 the Duke lacrosse team was a favorite to go to the national finals. But three team members had been indicted for the alleged rape of a strip dancer engaged to entertain at a team party. Duke's President, Richard Brodhead, not only did not afford to them the presumption of innocence, but believed that there was something about lacrosse itself that somehow contributed to the alleged crimes. So Brodhead canceled the team's remaining 2006 games, fired the lacrosse coach, removed the game of lacrosse as a varsity sport, and decided that, pending trial, the two indicted players who had not yet graduated were not eligible to remain at Duke. Many in the Duke community labeled the team as part of a culture of privilege, racism and violence. Team members were taunted night and day.

For the 2007 season Brodhead reversed himself, reinstated lacrosse, and hired a new coach. Despite the demoralizing background, and the continued absence of two of its best players, the Duke lacrosse team fought through to the 2007 finals against Johns Hopkins. Down ten to five at the half, Duke ultimately lost by the margin of a single goal. But who can say that this Duke team did not achieve one of the most courageous victories, both for their own vindication, and for the game they loved, that has ever been achieved in college sports? Meanwhile, the Attorney General of North Carolina had dismissed the criminal charges and declared the three indicted students completely "innocent."

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Finally, three great opinion pieces from this week’s Chronicle. Jason Trumpbour wonders why Duke has no protested the “separate-but-equal” justice system imposed by Durham against all Duke students. Kristin Butler urges (properly, in my opinion) alumni to become more active in the college governance process. And the editorial board praises (again properly, in my opinion) the NCAA’s decision to grant the 2007 sophomores, juniors, and seniors an extra year of eligibility.

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Scheduling notice: I will be in Raleigh, live-blogging the Nifong ethics trial, all this week.

Jesse Jackson's Moral Certainty

One remarkable pattern about this case has been the steadiness of those who rushed to judgment last spring and now not only refuse to admit any error, but continue to cling to the moral judgments they adopted last spring, when their statements or actions presumed that a crime occurred.

Take, for instance, the Rev. Jesse Jackson, and head of the Rainbow/PUSH coalition. Shortly after the announcement that the first DNA tests came back negative, the two-time presidential candidate treated the news as blasé, in a column entitled, “Horror and Truth”:

Something happened on the night of March 13^th—something so compelling that Durham District Attorney Michael Nifong was prompted to say, “This case is not going away.” Indeed, he asserts that the lack of DNA evidence "doesn't mean nothing happened. It just means nothing was left behind." The District Attorney is putting the case before a grand jury.

“These facts,” continued Jackson, “are not in dispute.”

• “This was the first time [Crystal Mangum] had been hired to dance for a party.” False.

• “The one African American on the team wasn’t there.” False.

• “We know that the two women were abused.” False.

• “What happened? We don’t know for sure because the Duke players are maintaining a code of silence.” False.

Jackson’s conclusion? “The Duke scandal should lead colleges across the country to hold searching discussions about racial and sexual stereotypes, exposing the myths that entrap so many. But it shouldn’t take the brutalizing of a mother of two to raise these issues. Justice must be pursued at Duke. But Duke should not be treated as an isolated extreme – but as a goad to probing discussion and concerted action to lift students above the hatreds, the fears and the fantasies that still plague our society.”

Then, to show his support for Mangum, Jackson said that the Rainbow/PUSH organization would pay her college tuition, arguing, “There's more evidence that violence occurred to her than she's the lead of a hoax.”

But if it were a hoax? Jackson said he’d still pay Mangum’s tuition.

More than a year later, Jackson has returned to the case, in an interview with John Williams of WGN Radio. He conceded that it was wrong for Mangum to have lied—though, he noted, people needed to start asking the question, “What about the girls’ careers?” In a delicate description of Mike Nifong’s conduct, Jackson asserted, “The prosecutor was playing light with his cards.” And, he concluded, he was glad that the players “were not found guilty.”

Actually, of course, they were declared innocent.

Three times he was asked whether he would apologize to the players for his spring 2006 actions; three times he refused. Instead, he continued the character assault. It was, he chided, a “very hazardous party,” indeed an “orgasmic(!) party.” He continued: “There’s no moral value in that party”—as if anyone had claimed that there were.

The people to blame were the players themselves: “They did put themselves at risk, and therefore they had to pay a real social price for it.” Anyhow, their parents had enough money to get them off, whereas a “lot of people” don’t have the resources and go to jail. Jackson did not say if he had offered to use Rainbow/PUSH funds to pay the college tuition of those who had falsely accused any other people.

When asked point-blank by host John Williams whether he had made a mistake, Jackson channeled John Feinstein:

John Williams: “Are you going to admit to them [the lacrosse players] that you made a mistake; and that your mistake had consequences, unintended, to them?

Jackson: [Pauses.] I didn’t make a mistake.

My appeal was for the truth to come out. We did not indict them. We said, let the truth—do not spare the investigation.

[So that’s what Jackson meant when he said that the Rainbow/PUSH coalition would pay Crystal Mangum’s college tuition, even if it were proven that she lied.]

Because this happens much too frequently, John, where the rich prey upon the poor, where men prey upon women.

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What did Jackson mean by “this”? A false accusation of rape? Rush-to-judgment attitudes among an elite university’s faculty? Prosecutorial misconduct excused by the state NAACP?

Jackson never said.

At another point in the interview, he again retreated to vagueness, contending, “After all, this is a pattern in the South.”

Williams asked Jackson whether the reverend was going to protest every college frat party. He could have asked whether Jackson also opposes groups of women holding stripper parties or attending explicit spring break parties. And it’s worth knowing whether it is now the official policy of the Rainbow/PUSH coalition to pay the college tuition of all women who file false claims of rape. If not, why did Jackson make an exception in this instance?

What’s the chief lesson of the case? Jackson explains:

I would say that the act of men luring women with their moneys for their private gratification—we must admit that is unethical . . . and highly risky. Therefore, that very act is ill-advised. And you put yourself in a very perilous predicament. And they did.

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Astonishing.

The Unbalanced Panel

In his initial memo outlining his hopes for the police inquiry panel, mayor Bill Bell said his ideal would be four people from law enforcement; four people with criminal defense experience; and four community activists. Yet, as Brad Bannon points out in today’s Herald-Sun, this balance seems lacking:

They have five people with law-enforcement backgrounds, one person, a rape crisis counselor, who’s pseudo law-enforcement, and apparently they’re looking for a prosecutor . . . That doesn’t give me a lot of comfort about the necessary diversity on this panel.

Diane Catotti’s appointment of Aurelia Sands Belle—a figure who seems unable to affirm that a rape did not occur—raises obvious conflict-of-interest problems: the Durham Rape Crisis Center over which Belle presides not only received a six-figure grant from the DPD but helped train the very police force whose conduct is under investigation. It seems as if Catotti’s only goal is to produce discord within the inquiry, thereby helping to cover up the abuses associated with the case.

Eugene Brown, on the other hand, offered the kind of appointment that his colleagues should have imitated—a former state senator known for his work on open-discovery issues.

In general, how can it possibly be that the Council has seen fit to appoint to the panel more rape crisis counselors (one) and Nifong campaign donors (one) than practicing criminal defense attorneys?