Christmas Roundup

In addition to the Charlotte Observer, Greensboro News-Record, and N&O, a fourth North Carolina newspaper, the Wilmington Star, already had censured Mike Nifong last week—even before he decided to manipulate the evidence to fit his theories yet again by dropping the rape charge but maintaining the other two charges.

The Star noted sadly that it was “hard to keep track of the North Carolina district attorneys who cheat, break the law and trample the truth in a rush to get convictions—not to mention publicity for their next political campaign.” It suggested that the state bar’s failure to punish prosecutors in the Gell and Honeycutt cases might have emboldened Nifong to violate state law and try to withhold exculpatory evidence.

Where are the statewide officials? As Nifong has trampled on the national image of North Carolina justice, AG Roy Cooper has stood silently by. Why has Cooper, the Star wonders, not asked “the General Assembly to give him (and not just local DAs) the authority to go after prosecutors who violate the laws they swore to uphold?”

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Saturday, papers from one end of the state to the other reacted with dismay to Nifong’s bizarre decision to drop the rape charges but retain the charges of sexual assault and kidnapping.

One important exception existed to the pattern. The Herald-Sun, which has published nearly two dozen unsigned editorials on the case, was silent on the latest Nifong maneuver. Instead, the editorial page saw fit to write about such issues as “Share Your Christmas” wish lists; a woman suing Durham for injuries suffered when a speeding police car struck her; and the activities of Miss USA and Donald Trump.

The latter item featured the editors asking the hard-hitting question, “Whatever happened to pageant winners who took pride in being role models for young women?”

With 24 hours to consider matters, the "Snooze Room" spin machine spun into motion. An editorial conceded that the accuser's credibility was "frayed," and had nothing good to say about her. But the H-S continued to stand by its man. Dismissing claims of prosecutorial misconduct, the editorial page offered this remarkable version of events:

It's possible that Nifong and police investigators simply gave credence to the accuser's story. Don't we want our law enforcement officials to be attentive to accusations of crime victims, no matter who the victim is or who is being accused? Yes, she may have changed her story in the days after the incident, but that is not uncommon with traumatized rape victims and is not in itself evidence of dishonesty.

No, actually "we want our law enforcement officials" to follow their own procedures. And Bob Ashley claims to be "baffled " as to why H-S coverage would be cited as grounds for a change of venue.

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The silence of North Carolina’s Democratic Party as Nifong trampled on civil liberties and welcomed a homophobe as his citizens’ committee co-chair is disturbing. The silence of North Carolina’s Republican Party about the case, however, is inexplicable.

Strictly from the standpoint of bare-knuckle politics, the case should be a boon for the GOP. In a carryover from the Jesse Helms period, the North Carolina GOP receives almost no black support. So the GOP has nothing to lose and much to gain from seizing on the Nifong issue. In particular, aggressively attacking Nifong could tarnish the man who appointed him, Mike Easley, who is a potential candidate for Senate in either 2008 or 2010.

Perhaps this Republican reticence is about to change. BlueNC, the Tar Hell State’s leading Democratic blog, this week ran a post with a large photograph of Mike Nifong, coupled with the tag line, “Could this be the face that will haunt North Carolina Democrats?”

The post makes no bones about Nifong’s behavior:

In light of recent developments, Michael Nifong may be guilty of egregious prosecutorial misconduct in the Duke rape investigation. Already it appears that professionally Nifong is toast, and there is speculation that his malfeasance may not be covered by prosecutorial immunity. In what may be the ultimate irony in this Gothic drama, Nifong himself could wind up being the only "player" who faces a judge and jury.

But BlueNC is most worried about “the implications for North Carolina Democrats.” It takes note of Walter Jones’ demand for a federal investigation into Nifong, and looks at how an article by Wendy McElroy went out of its way to stress Nifong’s partisan affiliation.

In the end, BlueNC expresses doubt that the issue will harm the Democrats, at least until more politically savvy Republicans become involved. Perhaps. But if leading Tar Heel State Democrats start to fear that Nifong will harm them politically, they might begin to do what they should have done months ago, and act to check this runaway prosecutor.

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Last week, political science professor Michael Munger became the second Duke arts and sciences professor—and third undergraduate professor overall—to publicly criticize Mike Nifong. Munger asserted that “the evidence now appears overwhelming (actually, it was overwhelming three months ago; now it is outrageously overwhelming) that the prosecution is conducting a politically motivated and cynical witch hunt. The system is broken, and Nifong has to go. I would go so far as to say that the city of Durham should have to pay most, or all, of the legal costs of the three young men.”

Munger provides the most perceptive response I have seen to the line of argument offered by figures like FOX News panelists Ted Williams or Barry Grimm—to wit, that people should remain silent about the prosecutorial abuses in this case because these sorts of things happen to poor minorities all the time.

These critics, Munger suggests,

are missing the point: these young men are not charged with rape in SPITE of their race and class. They are being charged precisely BECAUSE of it. The whole point, for Nifong and for some (I don’t know how many) of his supporters is that this is a chance to get back at the elite. Nifong’s side appears to want to argue this way: If these particular white boys didn’t commit the rape, well they have done other bad things we don’t know about. And the very fact of their wealth and privilege is an outrage, and someone needs to be held accountable.

Munger also blasts the Group of 88’s questionable judgment. As he observes, “their statement was, even in the most charitable reading, full of opportunities for what signers later called ‘misrepresentations’, though it appears to me that the critiques of the statement are based on the plain meaning of the words in the statement.” He also takes note, as have I, of the irony of the Group of 88 complaining about people misrepresenting their words when they ensured that their statement was removed from the Duke server. (A preserved version of the statement is available on this blog’s sidebar.)

Munger is surprisingly soft on the administration, and overly harsh (as he seemed to concede in comments) about what Duke should have done to the lacrosse team. But his critiques of both Nifong and the Group of 88 are superb.

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The Duke Chronicle has started an on-line forum about the case. Early posts are strongly, and justifiably, critical of the University’s response. Posters have singled out the Group of 88 for criticism—and justifiably so.

Tenure and principles of academic freedom protect the Group of 88 from personnel retaliation (quite appropriately). But nothing prevents the administration from taking other steps to express its disappointment with the Group’s actions.

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One fallout from Nifong’s latest manipulation of the evidence came in a change of heart from Richard Brodhead. The Duke president issued a strong statement urging a special prosecutor and demanding that Nifong publicly account himself for his behavior.

A few days before Brodhead’s reversal, dartblog ran a poignant post from a Duke 2006 graduate expressing disappointment with how his school responded to the affair.

I graduated from Duke this past spring, and just want to shoot you a quick comment, especially now that the case has jumped up again. When the allegations first came out (when The Duke Chronicle reported a rape occurred at the lax house), much of the student body raised an eyebrow, but were maybe not totally surprised — after all, the lax guys did have their reputation. But as more and more details came out and it blew up nationally, the large majority of students thought it through rationally and realized that the players were probably innocent of such charges, fairly early on. Sure, they were a little over the top, but they were still fellow Duke students, and not more “barbaric” or such than the rest of us. It just didn’t seem realistic.

And while the Duke administration’s initial stance — condemning the actions if true, and letting the initial investigation proceed — was certainly understandable, over time the tide changed dramatically. As it became quite clear to everyone paying attention that these 3 students were innocent of the outrageous charges, the Duke administration did not change its tune. Sure, while some members would occasionally slip a “more information has come out that might possibly cloud what happened that day” into an informal talk, the school as a whole never released any kind of statement that changed their attitude from essentially backing the accuser/Nifong, to actually supporting their own students and reputation. All it would have taken was a press release, something apologizing for preemptively canceling the lax season (something nearly all students disagreed with) and inviting the suspended students back to campus, if they chose to return (knowing full well they wouldn’t anyway until the trial was over).

Something to reassure the current students and recent alumni that the school actually backed its own. However, this never happened, and still hasn’t, as it is abundantly clear the whole case is bunk. Everyone knows it. This is what Duke students are furious about. Even if they did not personally know the accused, or even a lacrosse player, seeing how Duke has treated its own disgusts us. I don’t know how many students I have heard talk about how this will affect their future view of the school, and any possible alumni relations. While Duke students certainly support the ‘idea of Duke’ — a great education, outstanding athletics, and a vibrant social life — the administration (which was on poor terms with the students to begin with for constantly changing the school without consulting students) not supporting its own only continues a trend of which Duke students are tired.

Were students pissed at the national assaults about race/ class/ elitism/ etc.? Sure, but that has subsided as even The New York Times has changed their tune. What hasn’t changed is the stance by the administration, and this is what will come back to harm the school in the long run. Why support your school if they won’t support you? Duke students love Duke for the other students there, not for the administration and [its] polic[ies] that seem in constant conflict with the undergraduate experience.

In an article last week, Brodhead expressed his belief that it will take two to five years for Duke to recover from this affair. His statement on Friday was a good first step in this recovery. But it’s clear he has a long ways to go to meet the concerns of the poster above, and others like him.

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The Times and Herald-Sun have deserved every bit of criticism they have received for their coverage of the lacrosse case. But a third paper has been equally bad. The Washington Post has played a much lower-profile role than either the Times or the H-S, but it has been poor in a unique way. It has published relatively few articles on the case; instead, it has made its mark with over-the-top commentary that has failed to stand the test of time.

Eugene Robinson, for instance, deemed it “impossible to avoid thinking of all the black women who were violated by drunken white men in the American South over the centuries. The master-slave relationship, the tradition of droit du seigneur, the use of sexual possession as an instrument of domination—all this ugliness floods the mind, unbidden, and refuses to leave.” Lynne Duke likewise wildly termed the case “reminiscent of a black woman's vulnerability to a white man during the days of slavery, reconstruction and Jim Crow, when sex was used as a tool of racial domination.” And in legal “commentary,” Andrew Cohen aggressively rebuked those in the media who dared to question Mike Nifong’s actions.

The Post returned to Duke matters Saturday with a poorly reported story that followed the storyline laid out by Lynne Duke, Robinson, and Cohen. The case, Post reporters Peter Whoriskey and Sylvia Adcock stated, “pitted a black woman who attended a small, largely black school and worked part time as an exotic dancer against the largely white lacrosse team at one of the nation’s most prestigious and expensive private universities.”

Actually, NCCU’s undergraduate enrollment for 2005-2006 was 6353 students, or 109 more than Duke’s undergraduate total of 6244. And no one has yet presented evidence that the accuser “worked part time as an exotic dancer” while she attended school full-time; indeed, the reverse seems to be the case. But the “weak-vs.-strong” storyline certainly is an attractive one, regardless of the facts.

Whoriskey and Adcock continued, “At the behest of Finnerty’s family, Rep. Walter B. Jones Jr. (R-N.C.) has asked Attorney General Alberto R. Gonzales to open an investigation into the prosecution.” In an interview with FOX, Jones explicitly said he had no contact with any of the students’ families, and that he made his request because of constituent pressure. It’s extraordinary for the Post to insinuate that a sitting congressman isn’t telling the truth without providing any evidence to substantiate the claim.

The Post’s duo further added, “The accuser was hired for $400 to perform for two hours at the party. She left early as some students shouted racial taunts, witnesses have said.” While Lynne Duke and Duff Wilson have claimed that some of the players shouted racial taunts at the accuser in the house, no witnesses have done so.

And some more: “A study conducted at Brodhead’s direction raised questions about an overzealous party culture on campus. Others criticized the university for fostering a sense of privilege and racial insensitivity.” I’m unaware of what study the Post reporters are referencing; and noting that a vague “others” issued undetermined criticism strikes me as sloppy reporting.

If the Post can do no better, perhaps it should return to having its news division ignore the case.

Holiday greetings from the DIW staff.

Today's Papers

The post below noted that every time Nifong speaks publicly on the case, he unintentionally winds up providing fodder for future ethics charges. A Neff/Niolet article in today’s N&O confirms the fact.

My post looked at the impossibility of Nifong’s claim that his activities on the quadruple homicide case (where an arrest didn’t occur till October 16) affected his efforts to conceal exculpatory DNA evidence in the lacrosse case.

The N&O story, meanwhile, examines how Nifong’s statements to the Times contradicted his own previous explanations of his actions:

In open court on December 15, Nifong affirmed that he hadn’t even heard of this issue until two days before, when the defense filed its DNA motion.

Dr. Meehan’s testimony gave the lie to this claim; and so in an impromptu press conference after the session, Nifong fantastically suggested that he had agreed to withhold the evidence to protect the privacy rights of the same lacrosse players he previously had referred to as “hooligans.”

Now, as the N&O notes, Nifong has moved on to explanation number three. I doubt either the court or public opinion will find this explanation any more credible than its predecessors.

Nifong’s more serious problem, Neff and Niolet recognize: “Since May, Nifong has repeatedly misrepresented his actions in filings and in face-to-face dealings with judges. Nifong has repeatedly said that he disclosed everything about the DNA evidence.”

Especially damning are comments that—now that we know the facts—look transparently evasive, from the September 22 hearing. In response to questions from Brad Bannon, Nifong stated that in conversations with Meehan, the two only discussed the contents of Meehan’s (cleansed) report. Judge Osmond Smith asked: “So his report encompasses it all?” Neff and Niolet recount the rest of the exchange:

Nifong answered haltingly: “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 repeated his question: “So you represent there are no other statements?”

“No other statements,” Nifong said. “No other statements made to me.”

Nifong has misrepresented the facts so much in this case that it appears he no longer can keep his stories straight.

Neff and Niolet also provide a summary of Nifong’s crumbling case. They note that, with his admitted lack of any scientific evidence, “his case relies on the words of the accuser, an escort service dancer who has told her story on at least 10 occasions to nurses, doctors and investigators. Her accounts have changed with every telling.” Moreover, the district attorney has now dismissed what had been a consistent aspect of the accuser’s tale—that she was vaginally raped.

Moreover, Neff and Niolet bring word of scientific skepticism of Meehan’s incredible explanation for a lack of DNA evidence involving the accused players: “A person can rob a bank and never leave a fingerprint. It doesn’t mean they didn’t rob the bank.” The N&O interviews Arthur Caplan, chairman of the Department of Medical Ethics at the University of Pennsylvania, who termed it “next to impossible” for the accuser’s story to be true and no DNA from her alleged attackers to be left behind. He said, “The odds are tiny to zero that you’re not going to find any sample from anybody. It gets hard to imagine that some kind of forced or unwanted activity took place.”

The Herald-Sun, meanwhile, used the occasion to mention, for the first time, Jim Coleman’s legal critique of Nifong’s actions. An article penned by John Stevenson noted that Coleman has compared Nifong to the captain of the Titanic: “Actually, what’s happened is that he’s sort of rearranging chairs on the deck. I mean, his ship is going down.” Nifong, he continued, is “making a mockery of the criminal justice system in this county.” Coleman correctly observed that Nifong is “in way over his head in a case that’s in the big leagues, and the bush league stuff that he does, trying to hide evidence and stuff like that, that doesn’t work against good lawyers.”

As for a final outcome of the case, the result is a foregone conclusion. “I think in this case,” said Coleman, “there’s probably nobody in North Carolina who thinks that this prosecutor has integrity. And so everybody is going to be skeptical of any case that he puts on. And given what we know about the evidence, I don’t see any jury convicting these three students.”

The H-S also revealed that not only had Nifong failed to inform Police Chief Steve Chalmers of his decision to drop the rape charges—but he also had neglected to tell Mayor Bill Bell.

An AP story by Aaron Beard reveals that another figure has stepped off what Liestoppers has dubbed the “short bus” of Nifong enablers. Former Denver DA Norm Early has served as chairman of the National District Attorneys Association; his consistent, vehement, defenses of Nifong have left the uncomfortable impression that Early believes that prosecutors all over the country behave as Nifong does. But he now has changed his view. “I don’t understand why all the charges aren’t being dropped at this time,” said Early. “It’s such an incredible credibility problem that you wonder how the prosecution could rehabilitate her on the other charges.”

And the Charlotte Observer proposes a Christmas gift for Mike Nifong: “The complete ‘Law and Order’ series on DVD, to study during the holidays.”

Nifong's Fantasy World

Mike Nifong’s arrogance is breathtaking. Today’s Times features another article based in part on the three-hour interview the D.A. granted with Times reporters on Thursday. It’s worth reiterating that, prior to Thursday, Nifong had, on multiple occasions, termed it procedurally improper for him to publicly discuss the case in any way.

According to the Times, Nifong has developed an excuse for why he entered into an agreement with lab director Brian Meehan to intentionally exclude from Meehan’s report results showing that the DNA of several unidentified males was discovered in the accuser’s rape kit. His claim? It was an innocent mistake—he had other work that distracted him from his duty to follow the Open Discovery law.

“You know,” he told the Times, “it’s not the only case I have right now. I have two. The other one’s a quadruple homicide. If you ask me, to everybody but a reporter for an out-of-town newspaper, the quadruple homicide is probably the more significant case. But because we have some of these other sexy issues here, you all are flipping out over this particular case, which is not the most significant case in our office. It doesn’t mean it doesn’t get attention. What I’m saying is in the overall pecking order of things, it’s not the most important thing that we’re doing.”

1.) The Significance

His deal with Dr. Meehan, claims Nifong, isn’t all that important.

Times reporters David Barstow (a new figure on the Duke case as of the last two articles) and Duff Wilson explain:

[Nifong] denied, though, any effort to hide the results or delay their release. He has long been known locally for giving defense lawyers open access to his evidence, even before a state law required that. And, he said, even if the test results should have been turned over months earlier, the defense still had the evidence well in advance of any trial date — which had not yet been set.

“So it’s not like this is something we discover on the fourth day of a five-day trial and say, ‘Oh, by the way,’ ” he said. “I mean, that’s not what’s going on.”

UNC law professor Joseph Kennedy has, correctly, ridiculed this argument. “Prosecutors,” he wrote, “do not get to play ‘Battleship’ with their discovery obligations by requiring defense lawyers to score a direct hit with a discovery request. Prosecutors must affirmatively disclose what the law requires.”

And the law, in this case, is clear: since 2004 in North Carolina, prosecutors must turn over to the defense all evidence, whether or not the prosecutor considers it exculpatory.

That Nifong effectively brushed off his obligation to follow the law testifies to the mindset he has brought to this case.

2.) The Election

Although the Times continues to obscure its presence, an election did occur for district attorney on November 7, 2006. The quadruple homicide was not the “more significant case” in that contest. In fact, the quadruple homicide played almost no role in the race. Effectively the only issue in that campaign was the district attorney’s handling of the lacrosse case, and what it said about his fitness to serve as prosecutor.

Nifong’s revisionist history, however, goes something like this: he was facing a recall election in which his political opposition—along with the N&O news staff—hammered him for lacrosse case procedural violations. But he was too busy (doing what is unclear) to notice that he had committed a major procedural violation by not turning over the exculpatory DNA results in the very case for which he was under daily criticism.

Even Nifong’s own words contradict this transparently absurd version of events. On November 5, the district attorney was perfectly clear on the significance of the lacrosse case to his constituency. In an e-mail sent to his supporters and leaked to me, he stated that the Recall Nifong/Vote Cheek forces “have endeavored to make this election something it is not: a referendum on a single case that that [sic] view as a threat to their sense of entitlement and that they do not trust a jury of Durham citizens to decide.” In the days before the election, then, Nifong fully understood which of the two cases was more significant to the November vote.

In light of his November 5 e-mail (as well as common sense), Nifong’s statement to the Times about the comparative significance of the two cases in Durham can only be interpreted as a deliberate attempt to mislead.

3.) The Excuse

As to the insinuation that his duties prosecuting the quadruple homicide played any role his failure to turn over the lacrosse case DNA: the assertion only shows Nifong’s contempt for the Times, a newspaper that has played the fool for him for far too long.

Police arrested Rodrick Duncan for a quadruple homicide on October 16, at which point Nifong’s office took over the case.

• On April 10, Nifong entered into an agreement with Dr. Meehan for an “intentional limitation” of Meehan’s report to exclude the exculpatory evidence. April 10 is prior to October 16.
• On May 18, Nifong turned over Dr. Meehan’s selectively edited report to defense attorneys. He accompanied the document and other discovery material with the following statement. “The state is not aware of any additional material or information which may be exculpatory in nature with respect to the defendant.” May 18 is prior to October 16.
  
• On June 22, as the Times story observes, “Mr. Nifong denied that Mr. Meehan and he had talked about anything else he had to disclose to the defense.” June 22 is prior to October 16.
• On September 22, Nifong ridiculed the defense’s request for the underlying DNA data, accusing defense attorneys of conducting a “witch hunt” and sarcastically finding it “interesting now that they are trying to get information that would help dispute those tests.” He also released a letter from Dr. Meehan expressing concerns (which Judge Smith overrode) about privacy and cost regarding turning over the data. September 22 is prior to October 16.

In short: on no fewer than four occasions before police made arrests in the quadruple homicide, Nifong took an affirmative act to deny defense access to DNA material that he himself now concedes was exculpatory.

There have been two consistent patterns in this case. First, Nifong will manipulate any and all evidence to his fit his desire to charge the lacrosse players with a crime. Second, every time Nifong speaks publicly on the case, he unintentionally winds up providing fodder for future ethics charges.

The Nifong interview with the Times conforms to both patterns.

Only in Durham

From today's Herald-Sun:

Chief Steve Chalmers, saying he was just back from vacation, first learned of Nifong's decision to dismiss rape charges against David Evans, Collin Finnerty and Reade Seligmann from a Herald-Sun reporter.

The highest-profile case in the city's history; and police officials were caught unawares that Nifong dropped the rape charge?

And is Chalmers perpetually on vacation? This is the same man who was absent for months at a time as Nifong improperly assumed control of an ongoing investigation.

As a DBR column this morning points out, this case has shown a disturbing spotlight on a city that seems to be dysfunctional.

Nifong in the N.C. Media

Three North Carolina newspapers take on Mike Nifong in their editorials today.

The most powerful response comes from the state’s largest newspaper, the Charlotte Observer. In July, the Observer urged appointment of a special prosecutor; now, it correctly maintains, “It's time for an investigation of the investigation by the prosecution.”

The paper’s editorial board notes that the dismissal of the rape charge “came, conveniently, after the discovery that Mr. Nifong might have asked a DNA lab to selectively report its findings.” It concludes, “This latest twist leads you to conclude either (a) Mr. Nifong has been misled by an uncertain or unreliable witness; (b) he is incompetent; (c) he skillfully manipulated a case charged with racial and class overtones in an election year where he faced a challenge; or, (d) all of the above.”

(d) would seem like the correct answer.

From Greensboro, the News-Record laments, “It's too bad he didn't handle this case more responsibly from the start.” The editors quoted UNC professor Joseph Kennedy arguing that with Brian Meehan’s testimony, "Nifong's own witness essentially accused him of breaking the law.”

The News-Record is incredulous that the prosecution’s office would wait nine months to speak with the accuser, at which time she changed her story yet again. (To my knowledge, the accuser has never told the same story twice at any point in this case.) But, the editors astutely observe, “Nifong’s biggest problem is the means by which the defendants were identified.” The D.A. musings of “What is a lineup?” seem unlikely to persuade any judge.

Finally, the N&O editorial page—after months of silence, in which it ignored its own first-rate reporting—confronts Nifong’s misconduct. The newly “revised account of the alleged rape,” the editors reason,

continues to point up problems with how Nifong has pursued this case. His first statements, made to television reporters with national audiences, included iron-clad assurances that a rape had occurred and that the defendants were guilty. Those statements about the men seemed to cross the line of prosecutorial propriety.

Then it turned out, as The News & Observer reported, that the D.A. had never interviewed the dancer about the events of that March evening, a puzzling fact given the certainty with which Nifong seemed to vouch for her truthfulness. The photo lineup in which the woman identified her alleged attackers included photographs only of lacrosse team members, a violation of Durham's photo ID policy and clearly skewed against the players.

After laying out the case against Nifong, however, the N&O concludes in a bizarre fashion. “The accuser,” the editorial asserts, “if she can offer a coherent account and stand by it, deserves to have her allegations heard in court.” This assertion is absurd: police and prosecutors are supposed to exercise discretion, rather than pass on any and all non-credible accusations for a jury to decide. In this case, the accuser/Nifong have presented at least 10 versions of events, with the two most recent changes (a shortening of the timeline, elimination of the rape charge) blatant manipulations of the story to fit new, exculpatory evidence.

“From here on out,” the N&O reasons, “Nifong needs to be fair and cold-eyed in evaluating evidence as it continues to come to light and in assessing the strength of his case.” Based on his conduct over the last nine months, is there any reason—any reason at all—to presume that Nifong is capable of acting in a “fair” fashion?

Nifong's Sinking Ship

The depths to which Mike Nifong can sink can surprise even those who have watched his performance closely over the last nine months. Yesterday, just after 11.37am, he faxed notice to the three defense attorneys that he was dropping the rape charges (but not the other charges). The same man who hogged the cameras last spring then closed down his office for a Christmas party, posting on his office door a sign reading, “NO MEDIA ............... PLEASE!!!!!!!!!!!!!”

How does this development affect what remains of the case?

1.) In the unlikely event a trial occurs, any convictions are now impossible.

With yesterday’s move, Nifong effectively impeached his only witness. On April 4, the accuser was shown photographs of the 46 white players on the Duke lacrosse team. In that lineup, the accuser made multiple errors (for starters: claiming to have seen two players who could prove they weren’t at the party and incorrectly identifying the player who made the broomstick comment). But she identified four people as possible attackers, and Nifong chose three to indict.

She did more than identify, however: she described what each of the alleged attackers did to her. By offering a new version of events 282 days after the party, Nifong argues for disbelieving the accuser’s on-tape descriptions of acts from the April 4 ID session.

Moreover, the accuser’s new version of events appears to make it impossible that one of the defendants, Reade Seligmann, could have committed the crime described by the state.

In short, whatever credibility the accuser retained has vanished.

2.) The chances of this case lasting beyond February have plunged.

The February 5 hearing (if it occurs) will consider the defense motion to suppress the April 4 lineup results. The legal justification for that lineup was already tenuous: after the accuser had failed to identify any players in two previous lineups, Nifong scheduled a third session. Only this time, he ordered police to violate their own procedures by:

(1) confining the lineup to suspects;

(2) having the case’s lead investigator, Sgt. Mark Gottlieb, run the session;

(3) telling the accuser that the lineup would consist only of suspects;

(4) reminding the accuser of the importance of making an identification.

Because the April 4 lineup not only violated Durham city regulations (which require including five filler photos per every suspect) but also contradicted the guidelines of virtually every other city and town in North Carolina, Judge Osmond Smith’s upholding it would risk the entire statewide apparatus of identification procedures.

With yesterday’s decision, Nifong has asked Smith to do the impossible: to uphold the procedurally flawed April 4 lineup, even though the prosecutor himself now denies the accuracy of much of what the accuser said in the session. No judge in his right mind would uphold a lineup under such conditions.

3.) The chances of federal intervention have increased.

Jeff Taylor of Reason displayed perfect timing with his column yesterday. He argued that Nifong’s behavior had forced “fans of limited government confront an ugly truth. Despite the sensible urge not to federalize every issue, sometimes only another layer of government can fix bad government”—or, in this case, the administration of justice in “North Carolina, America’s very own banana republic”? Playing off the suggestion of North Carolina congressman Walter Jones, Taylor pointed to Attorney General Alberto Gonzales as “the key to protecting basic civil liberties in what should be a routine criminal prosecution by local officials.”

By fantastically claiming that the accuser can no longer “remember” central aspects of the version of events he used to indict the three players but that he still wants to send the players away to prison for dozens of years, Nifong positioned himself as the caricature of a reckless, malicious prosecutor—unintentionally confirming the argument that Jones made in his letter to Gonzales.

4.) UNC law professor Joseph Kennedy also deserves an award for good timing.

In an N&O op-ed published two days ago, Kennedy demanded Nifong’s removal from the case. Kennedy noted that in light of Dr. Brian Meehan’s revelations last Friday that he and Nifong entered into an agreement to intentionally withhold exculpatory DNA evidence, Nifong had an irreconcilable conflict of interest:

1.) Like any prosecutor, he would want to offer the most vigorous in-court case he could.

2.) Like a prospective defendant in an ethics or possibly even criminal case, he would want to find ways to minimize the significance of the exculpatory evidence he and Meehan conspired to prevent the defense from seeing.

Yesterday’s bizarre decision can only be explained as a product of that conflict of interest. By claiming that no rape occurred, Nifong can, perhaps, rationalize the decision reached by Meehan and him that the DNA from five, unidentified males was irrelevant to the case, and therefore should be excluded in Meehan’s report. He reached that outcome, however, at the cost of fatally undermining the accuser’s credibility.

Ironically, his action should have no effect on the ethical problems the Meehan revelations will pose Nifong: even if the allegations are sexual assault rather than rape and sexual assault, DNA from five other males as part of the rape kit is clearly exculpatory material, and no justification exists for withholding it.

5.) The Nifong enablers have started to separate themselves.

On one side, Duke president Richard Brodhead has commendably if belatedly issued a public demand for a special prosecutor, and stated that Nifong needs to account for his behavior. Meanwhile, the sole remaining pro-accuser blog, Our Hearts World, temporarily suspended publication pending further information about the accuser’s veracity.

Others, however, appear determined to go down with the ship. After appearing to take a step toward impartiality earlier in the week, the state NAACP case “monitor,” NCCU law professor Irving Joyner, did his best to spin yesterday’s news for Nifong. The accuser’s credibility, Joyner conceded, took a hit. But, he argued, if the accuser’s “testimony is that she was moved from one part of the house to another against her will and there was sexual touching, then he [Nifong] can build a case on those charges.” Was Joyner troubled by a prosecutor indicting people on one set of facts and then committing to trying them on another? Apparently not.

The Times’ Duff Wilson penned an article in which he allowed an anonymous source (presumably Linwood Wilson) to offer pro-Nifong legal analysis. Moreover, Wilson included a lengthy quote from Victoria Peterson defending the case—without ever mentioning that Peterson co-chaired Nifong’s citizens’ committee.

Apparently in reward for its steadfast support of his cause, Nifong granted a three-hour interview to the Times on Thursday. (He did not explain why this interview was procedurally justified when he has claimed in recent months that the state bar's ethics rules preclude him from commenting on the case: by his own definition, then, his sit-down with the Times violated his ethics obligations.)

In the interview, he appeared to be losing touch with reality.

1.) Retreating to a line he last used at the NCCU forum on April 11, Nifong claimed that if the accuser makes an identification, no matter how non-credible, “I have an obligation to put that to a jury.”

This statement not only misrepresents both North Carolina law and the canons of the bar's ethics code (which requires prosecutors to exercise discretion in cases they try), but it contradicts Nifong's own record, in which he has dismissed rape charges even when the accuser could identify her alleged assailants.

2.) Nifong asserted that people need not worry about the apparent doubts the accuser expressed in the April 4 lineup. “You can’t always tell from a photograph,” said he. “The only real time that you’re able to say if you have a misidentification is to put the person in the courtroom with the other people.”

Under this conception of justice, innocent people by the thousands would be charged, on the off-chance that accusers could identify them in court--when, of course, they're conveniently sitting at the defense table.

Moreover, if Nifong believes that personal identifications are so superior to photographic ones, why didn't he conduct a live-lineup session rather than a photo ID array in April? All 46 lacrosse players were in Durham, and so assembling them at the police station--with, of course, appropriate fillers==would have posed no problem for Nifong.

3.) The April 4 lineup poses no procedural problems, claimed Nifong--because it wasn't a lineup. “What is a lineup?” he mused. “What if I have no idea who did the assault?” Of course, in court papers filed on March 23, his office already had identified the 46 white lacrosse players as suspects.

Under this conception of identification procedures, due process protections would be meaningless: the police (or, in this case, the prosecutor acting as personal supervisor of a police investigation) could orchestrate a rigged lineup, and then simply engage in a philosophical debate about “What is a lineup?”

6.) Although extreme, what we witnessed yesterday conformed to a general pattern evident for months of Nifong manipulating evidence to fit his desired outcome.

Think back to late March. Until March 29, when it appears he heard back from the state lab that no matches existed to lacrosse players, Nifong publicly, and repeatedly, maintained that DNA would identify the guilty parties and exonerate the innocent. Once the tests came back without matches, the DA announced his willingness for the “good old-fashioned way” of eyewitness ID’s, without forensic corroboration.

Or consider the length of the attack. In springtime police statements, the attack lasted 30 minutes. Once Reade Seligmann produced unimpeachable electronic evidence showing he couldn’t have participated in an attack lasting 30 minutes, the DA speculated that the attack lasted between 5 and 10 minutes, since “when something happens to you that is really awful it can seem like it takes place longer than it actually takes.”

This blog is entitled Durham-in-Wonderland because everything about this case is upside down. Nifong decided the outcome—he would charge the players with a sexual offense—and has repeatedly, and shamelessly, manipulated the evidence to fit his desired outcome, rather than allowing the outcome to be shaped by the evidence.

Comparing Versions

Here's the New York Times, quoting what is almost certainly Linwood Wilson:

When she was interviewed on Thursday by an investigator from the district attorney’s office, the woman said she was penetrated from behind while she was bent over with her face toward the floor, but did not know with what, according to a person close to the investigation who would only speak on condition of anonymity.

Here's the accuser and Sgt. Mark Gottlieb on April 4, with the accuser describing the attack from Reade Seligmann:

Gottlieb: How did he assault you? Which one was he?

Accuser: He was the one that was standing in front of me . . . um . . . that made me perform oral sex on him.

Gottlieb: What else did he do?

Accuser: That was it.

Even accepting Nifong's latest version of events as 100 percent true, how, exactly, did Reade Seligmann commit a crime? Did he at some point slide underneath the accuser to perform the act that she alleged?

The Last Enablers

Over the past few years, the New York Times has waged a crusade against anonymous sources. According to Public Editor Byron Calame, the newly tightened rules state that "readers are to be told why The Times believes a source is entitled to anonymity."

The Times piece on Nifong's latest manipulation of the evidence includes the accuser's new version of events, "according to a person close to the investigation who would only speak on condition of anonymity."

Fair use of anonymous sourcing. But Duff Wilson (of course!) then gives the source the cloak of anonymity to interpret the legal significance of the new version of events.

"With the absence of DNA and her not knowing what was going on, it’s the right thing to do and it probably makes the rest of the case stronger," the source said.

What rationale exists for the Times allowing anonymous legal analysis?

What Mike Nifong Is Now Saying

Absolutely outrageous," said Jason Trumpbour, spokesman for the Friends of Duke University, about Mike Nifong's latest manipulation of the evidence. Trumpbour continued, "It's telling that he didn't go back to the victim in May to ask for an explanation. He only asked for an explanation when the DNA evidence became public."

Here is what Nifong, Durham County's "minister of justice," is now saying people should believe:

1.) Between April 11, when he admitted that he met with the accuser but found her sullen and non-responsive, and December 20, neither Nifong nor anyone from his office spoke with the acuser about the case.

2.) On December 21, for a reason or reasons unknown, Nifong sent his chief "investigator," Linwood Wilson, to speak to the accuser about the case.

3.) In her discussion with Wilson (who was hired by Nifong to help collect bad checks), the accuser said she couldn't remember being raped, but that she could remember being kidnapped and sexually assaulted. This is a wholly new version of her tale.

4.) The accuser's statements in the April 4 lineup are credible when she identifies Reade Seligmann, Collin Finnerty, and Dave Evans--but should be ignored when she describes the three of them participating in a rape.

5.) The decision to send Wilson to chat with the accuser had nothing to the revelation last Friday that Dr. Brian Meehan and Nifong entered into an agreement to intentionally withhold exculpatory DNA evidence.

6.) The decision to accept the accuser's latest version of events has nothing to do with the fact that it might make Nifong's decision to withhold the DNA evidence seem less pernicious.

Anyone who believes any of these six items--much less all six--can join Victoria Peterson, Bob Ashley, and the Group of 88, who seem to represent the last bastions of the once formidable army of Nifong enablers.

Brodhead, Finally

The Group of 88 appears determined to stay with Mike Nifong to the very end, but Duke president Richard Brodhead has--belatedly if commendably--issued an unequivocal statement on the case.

His statement:

I am greatly relieved for the students and their families that the most serious of the charges has been dropped. Given the certainty with which the district attorney made his many public statements regarding the rape allegation, his decision today to drop that charge must call into question the validity of the remaining charges.

The district attorney should now put this case in the hands of an independent party, who can restore confidence in the fairness of the process. Further, Mr. Nifong has an obligation to explain to all of us his conduct in this matter.

This statement makes all the right points, both in tone and in substance, and I very much hope all of Brodhead's recommendations are followed. I wish he had made this statement months ago, but am delighted he did so now.

The Beginning of the End

There is absolutely no justification for any continued allegations against any of the players; I suspect this is the beginning of the end for the case against them--and the beginning of the ethical and perhaps legal case against Nifong.

For more, see the N&O.

The Cascade Continues

Two more stinging rebukes of Mike Nifong appeared today.

The first came from Jeff Taylor, who had penned a similarly incisive piece on the case in June. Taylor correctly point out that Nifong’s has forced “fans of limited government confront an ugly truth. Despite the sensible urge not to federalize every issue, sometimes only another layer of government can fix bad government.”

The Meehan testimony, with its suggestion of a conspiracy between Nifong and the doctor to exclude exculpatory evidence for the defense, provided both a cultural (the Nancy Grace SNL skit) and an intellectual watershed (Susan Estrich’s searing denunciation of Nifong)—but it also brought to national attention the question of who can stop the Durham D.A.

As Taylor notes, North Carolina governor Mike Easley ands AG Roy Cooper have steered wholly clear from the case, constrained by their offices’ limited power (but also politically timid to confront Nifong); the state legislature has shown little concern, given that the defendants aren’t constituents of any North Carolina politician. Until the arrival of Osmond Smith, the judiciary had enabled Nifong. The state bar? “Loathe to get involved absent some sort of cover provided by the African-American lawyers.”

Taylor, correctly, identifies one other possible brake on Nifong: the university the targeted students once attended. But, he laments, “Duke has been thoroughly pro-Nifong, with the conspicuous exception of Duke Law professor James Coleman and the heroic attempts by some university supporters to nudge the institution away from the cliff”; he dismisses the Monday statement of President Richard Brodhead as continuing to “promote the tortured notion that the accuser deserves to air her claims in a court of law.”

Who, then, can act to restore the Constitution to “North Carolina, America’s very own banana republic”? Alberto Gonzales. When the AG “becomes the key to protecting basic civil liberties in what should be a routine criminal prosecution by local officials,” Taylor concludes, the “truth does not get much uglier than that.”

Meanwhile, in the Philadelphia Inquirer, Christine Flowers perceptively revives a comparison made several months ago by the Times’ Nicholas Kristof, and deems the case a modern-day version of the Scottsboro Boys.

She, to, recognizes that in the post-SNL/Estrich environment, Nifong’s image is irredeemable: he is now “every lawyer’s worst nightmare—a caricature wrapped in a stereotype of the proverbial shyster.”

Unfortunately, she notes, Nifong’s actions have tarnished the profession, since most people, when thinking of lawyers, focus not on the accomplishments of towering figures (think James Coleman in this case), but “on the mediocrities like the Durham County D.A., who sacrificed whatever integrity he might have had to win an election. He is, if anything, more prostitute than prosecutor.”

The Meehan revelations, Flowers argues, show that Nifong “is not only immoral and opportunistic. He must be disbarred.” Race and class, she realizes, have played a role in this case (how else to explain the NAACP acting as cheerleaders of an unethical prosecutor?)—but it was “Nifong who struck the match.”

Flowers concludes:

The real problem isn’t the color or net worth of the protagonists. It’s the fact that an officer of the court duty-bound to see that justice is done made political hay out of personal tragedies and trampled on the civil rights of three young men.

Let’s hope he gets his own dose of justice. The poetic kind.

Gonzales will act only with continued public pressure. The columns by Taylor and Flowers therefore help the cause.

Questions and Answers

The Meehan hearing triggered a lot of questions, and so it seemed like a good time for a Q+A post. Blog stats: since August 28, it has had more than 375,000 visitors and just under 700,000 page views. The blog now has had visitors from 106 countries, with the most recent additions including Honduras, Iceland, Malta, Kyrgyzstan, Afghanistan, Iran(!), Sri Lanka, Nigeria, Uganda, Zambia, Vanuatu, and Fiji.

Q: We have seen enough. Where are you, Steel? How long are you going to keep this tragedy going?

Q: I would love to if you can shed some light onto exactly what the role of the board of trustees (and the Chairman of the BOT) is, and what their limitations are. I have served as chair of a board of education, which may be very different from the board of trustees. However, in our state, board of education members are responsible for making policy--not for implementing it. And each board of ed member, including the chair, has no individual power--they can only act as a group. While the board of ed as a group evaluates the superintendent, the chair of the board of ed could never reprimand a teacher (or the superintendent) for actions he thought were wrong. Do members of boards of trustees have the power to reprimand or discipline professors and the president of the university? Is it appropriate for the Chair of the BOT to take a public stand on the actions of the university relative to the discipline or status of an individual student?

A: The role of Board of Trustees chairman Bob Steel represents one of the biggest mysteries of this case. It’s impossible to overemphasize to those outside the academy how unusually Steel has behaved in this affair.

Normally, Trustees are reluctant to become involved in University affairs, though when they do so, it most often is: (a) on financial or other fiduciary matters; (b) to promote athletics; or (c) to balance inappropriate, usually radical, actions by the faculty. The Ward Churchill affair at the University of Colorado is a good example of the latter. Also, normally a chairman of the BOT is first among equals, but not the sole spokesperson for the Trustees or the sole key actor.

In this case, Steel has recused himself on all financial matters; has stood silently by as faculty members have engaged in an anti-athletics jeremiad; and has taken a number of public and behind-the-scenes actions to work with faculty radicals in their campaign against the lacrosse players. Meanwhile, he has assumed a much more active role than the other Trustees, though he has claimed, in writing, that each and every one of the other 36 fully agreed with his actions.

In terms of the specific powers of the Board: In theory, the Board has considerable oversight power. To give one specific policy the Board could consider: to express displeasure with the Group of 88’s fairly clear violation of Chapter Six in the Faculty Handbook, Duke could withhold this year’s discretionary raises to faculty members who signed the statement. Don’t count on that happening, however.

Q: Someone put a copy of the entire Change of Venue document on this website. It needs to be here.

A: Excellent suggestion. I have added a new sidebar, which contains links to all three motions filed this week (change of venue, lineup, and DNA).

Q: Basically, how can a prosecutor, faced with DNA evidence not matching the accused, not follow it up and try to determine the source. Was the deposit consensual, or was it rape but not by a lacrosse player (as there is evidence that there were non lacrosse players at the party)? How could Nifong just ignore the evidence--unless he was fully aware that the entire story was a hoax, and following this trail would lead to nothing.

Q: Nifong has sworn in open court that he didn’t ask the accuser any substantive questions on April 11. Think it through! Which is worse for Nifong? He lied to the court? Or he didn’t? Given what he learned about the DNA evidence on April 10, under what circumstances would he NOT question her the next day? Is there a pretty answer to that question?

A: This issue is deserves more attention than it received in the post-hearing environment (but understandably didn’t, because the highest-profile item was evidence of the Nifong/Meehan conspiracy).

The short answer: no innocent explanation exists for Nifong’s behavior in this regard.

The longer answer: reconstruct the timeline. Nifong and Sgt. Gottlieb journeyed to Burlington on April 10, where Dr. Meehan told them that there were samples from five males other than the lacrosse players and the three men with whom the accuser had admitted having sexual relations. These findings suggested that the accuser all but certainly lied when she said she said she hadn’t had sex the week before the party.

While at this meeting, according to Meehan’s testimony, he and Nifong began the process of entering into an agreement to intentionally not report this information.

The next day, Nifong, Gottlieb, and two other police officers (Himan and Lt. Ripberger) met with the accuser. It is Nifong’s contention, stated in open court, that he did not discuss this information with the accuser at that meeting, because she was too “traumatized” by the alleged event.

The inescapable conclusion: he’s either lying or is mindbogglingly incompetent.

Q: In the Friday hearing, the brief filed by the defense states there has not been full disclosure regarding the DNA testing. And Meehan confirmed this in his testimony. Do Meehan and Nifong now have to provide the additional information? Or was this left hanging?

A: The brief listed several ways in which the request for more information could be fulfilled, one of which was Meehan testifying, subject to defense cross-examination.

The additional information was supplied by Meehan on the stand (his testimony). At the conclusion of his appearance, defense lawyers stated that they wanted to review the transcript, and then might be filing additional motions. I suspect that other agencies will be interested in that transcript as well.

At this stage, it appears that Meehan—albeit under court order, and over Nifong’s vociferous opposition—has turned over all of his data to the defense.

Q: KC, who’s to say that it wasn’t Bob Ekstrand who gave the emails to the H-S? The article reads as though the comments were replies to his request that the faculty sign his petition.

A: Fair question. From two separate sources, I have been told that Ekstrand wasn’t the Law School Leaker.

Consider, moreover, the motive: in light of Friday’s hearing, the Leaker had an opportunity to publicize that three law school professors (four, if you want to count Holloway) refused to sign a petition denouncing Nifong. Ekstrand would have no motive to have that information enter into public circulation. I can think of one or two recipients of the e-mail who “in a heartbeat” (to borrow a phrase) would have been only too willing to work hand in glove with the H-S.

There seems to be no chance that Trina Jones or Karla Holloway would have signed such a statement under any conditions. But others might have been concerned about the connection between Ekstrand, who has represented some of the unindicted players, and the petition.

On that matter: to my knowledge, the petition originated with undergraduate faculty members, and its initial circulation came in the arts and sciences and Engineering faculty. The Gronberg article suggested that 20 Duke professors had been willing to sign such a petition; I don’t know how many of this group (if any) were from the law school.

Q: There were also a number of guys at that party who were not LX. team members and so were not tested during the first round. Did Nifong think to test them? After all, he was stridently insisting that a vile form of rape had occurred. Did he mean it? Did he even try to test the group of potential perps when the first round came up blank?

A: This issue—for reasons that I cannot understand—has not received anywhere near the attention it deserves. The Nifong-led investigation knew on March 28 that at least two people at the party during the accuser’s “performance” weren’t lacrosse players. Investigators knew their names, and addresses.

Yet the accuser was never shown the photographs of these two people.

Imagine if a rape actually had occurred: because of Nifong’s investigatory negligence, the accuser was denied the opportunity to look at two people who might have been her “attackers.” The silence of pro-“victim” groups, such as the North Carolina NAACP, on this question suggests that whatever is motivating them, it is not ensuring “justice” for the “victim.”

What explains Nifong’s negligence? The only possible explanation is politics. Nifong was up against a politically imposed deadline: he needed indictments before the next meeting of the April 18 meeting of the grand jury. (The primary was May 2.) He learned of the non-lacrosse players attending the party on March 28. Acting upon this information would have required him getting a non-testimonial order, waiting for the state lab to analyze their DNA, and then scheduling a lineup ID session. (Since their DN theoretically could be a match, Nifong couldn’t afford to risk scheduling the “no-wong-answers” lineup until all DNA was in.) That schedule meant that he might not have time to make an indictment before the April 18 grand jury—which would mean no indictment before the primary. Which would mean no primary victory.

Q: Why can’t the NC Bar or the Feds question Judge Stephens on what transpired at the Grand Jury proceedings?

Q: How much is known about the Grand Jury? Charles A. Harris is the foreman’s signature on a number of documents that are part of the public record? Does anyone know who he is? Can the defense team take depositions from the members of the GJ, now that the Nifong-Meehan conspiracy has been exposed? It’s amazing that North Carolina doesn’t require a taping or record of the proceedings.

A: I’m looking into the question of grand jury secrecy, which varies from state to state, and hope to have more information after the first of the year.

Consider the questions a different way: imagine you served on the grand jury that handed down indictments against Reade Seligmann and Collin Finnerty. At this stage, after all that we have learned, how could you remain silent and not come forward to denounce the prosecution for obtaining fraudulent indictments from you?

Q: Is there any possibility that Nifong would attempt to have Meehan’s test results tossed out? I know this would do more harm to him, but how much more? If he accomplishes this, then the defense can’t use the 5 to 7 of the other men’s DNA, found on the AV or her clothes.

A: Nifong might try this move, but would have almost no chance of success. The defense obviously would oppose the motion, and I can’t imagine the judge siding with Nifong on the question.

Q: Imagine this going to trial (God forbid)! The defense lawyers' call Meehan as a witness. Nifong objects to Meehan testifying for various legal reasons, but the real reason is that Meehan's testimony would further implicate Nifong in a criminal enterprise. Is this so far fetched that it couldn't happen?

A: This issue, in fact, was a central element of UNC professor Joseph Kennedy's N&O op-ed from yesterday. Kennedy argued that Nifong now suffers from a hopeless conflict of interest, in which--to save his own skin--he would need to impeach Meehan's testimony.

By the way: we'll be seeing lots of this if a trial ever occurred. Even in the February evidentiary hearing, Nifong has no choice but to impeach the testimony of the current lead investigator on the case, Ben Himan, since Himan's notes contradict the Gottlieb "straight-from-memory" notes upon which Nifong so relies.

Q: Although one of the commentators asked the question, is there any response as to why the relevant authorities such as the Bar Association, Disciplinary Board, etc. have not moved on an investigation into Nifong's activities? Is it because the case is still pending? That seems dangerous for the three players in the event a conviction is won. As a former prosecutor and now defense attorney, I have an inherent distrust of the jury system. And given the trial likely takes place in the community that re-elected this DA, I am even more worried about the possible outcome.

A: There is no clear answer to this question. The bar's procedures contain nothing mandating the bar's ethics committee to wait to investigate a matter while a case is still pending. There seems to be no way absent political pressure, however, to force the bar to act in a timely fashion.

Q: I have a question, if Nifong were to interview the FA today in regards to all that DNA that was found on her would he have to hand over that information to the defense ?

A: Yes—under the Open Discovery Law.

Q: What is the legal rationale for calling a prosecutor as a witness? Nifong has on more than one occasion said that he specifically did not interview the AV because he did not want to put himself in a position to be called as a witness. Clearly prosecuting attorneys often (or usually?) interview alleged victims of crimes, without fearing they will be put on the witness stand. What is it in this case that would cause him to fear that if he interviewed her he would put himself in that position? Is it the fact that the AV changed her story, and the prosecutor could be asked to testify if he hears her change her story? In which case did Nifong NOT interview her BECAUSE he knew her story kept changing (and therefore knew there was an issue with her credibility?)

I ask this because almost all experts seem to agree that not interviewing the AV was a major error in the investigation, yet Nifong seems to think it was legally justified, or even SOP. It seems his motive is important (if he were charged with prosecutorial misconduct, could he have to testify as to his motive?)

A: Nifong’s argument is a canard, and it’s disappointing that some in the media have treated it seriously. Himan, Gottlieb, or Linwood Wilson could attend such a discussion and memorialize it, thereby precluding the possibility that Nifong would be called as a witness.

In normal cases, of course, the prosecutor is not simultaneously serving as the lead investigator, and therefore conversations between the prosecutor and the accuser don’t occur until after the police have completed their investigation and determined that a crime actually occurred. Therefore, it’s unlikely that any dramatically new information would come out in a prosecutor-accuser conversation.

Q: In my experience, when an expert takes the stand, unless both counsels stipulate to the background and credentials of said expert, there is a period of questioning regarding degrees, experience, prior court appearances, etc. was any of that done with Meehan?

2. Was there any exploration by defense counsel of Meehan’s statements that “Nifong was the client,” pointing out that the client was the State or the People or the taxpayers of NC and that they were owed an accurate, complete, unbiased report as required by his SOP, the standard setting body, and the state law?

3. You said: Meehan got off to a bad start. Less than 10 questions into a session with Bannon, he challenged a defense assertion that the underlying DNA test results—the results that he and Nifong had mutually agreed would be excluded from his report to the D.A.—showed DNA from multiple men on the material from the accuser’s rape kit. What was the bone of contention in the first 10 questions?

A: All excellent questions. On (1), this was a pretrial hearing confined to the issue of why Meehan didn’t follow NC law and turn over all the material in his initial report. So the question of his qualifications didn’t have to be etsbalished, as it would be in a trial.

On (2), no, there was no followup, probably because the comment itself (which Meehan made three or four times) was simply so bizarre. I suspect we’ll hear more of this issue in defense followup motions.

On (3), at the start of his testimony, Meehan seemed eager to dispute the claim that there were samples from five other men in the rape kit. Here I’m speculating, but my guess is that he (and Nifong, obviously) didn’t realize that defense lawyers had actually gone through all of the DNA data and had discovered the cover-up. So when he refused to acknowledge the obvious, Bannon was forced to walk him through the data step by step.

Q: Was the Wanted Poster a product of the Gang of 88 or student activists they knew of or supervised for better provoking community rage? Who assembled it from duke.edu web page photos? Who paid to print it? Who was involved in the group that distributed it 1st on Duke campus then all over Durham to attack “white male privilege?

A: John in Carolina is the blogosphere’s expert on the poster, and I turned to him for a response. He outlined the origins of the posters in this post, and also conducted an interview with local attorney Alex Charns, who is heading up the legal response to the posters. JinC then took the issue to the Durham Police, which offered what were at best evasive responses. And in this post, he summarized the N&O's role in disseminating the poster widely.

Q: Did Nifong hand over any more “evidence” at the hearing?

A: Yes, but not much. He handed over notes of Himan’s activities since mid-July; and Linwood Wilson’s notes. I doubt very much that the former will contain anything of consequence. I suspect the latter will be of the intellectual quality of the Gottlieb notes, without its “straight-from-memory” aspect.

Q: Since Gottlieb and Himan attended the two meetings with Meehan, should there be notes regarding the meetings in their investigation notes?

A: Absolutely. It is my understanding that Sgt. Gottlieb’s straight-from-memory notes contain nothing more than a statement that he attended the meeting, with absolutely no discussion of what was said at the meeting. This from the same person who, months after the fact, recalled precise details of his March 16 chat with the accuser.

Q: Bannon must be one hell of a lawyer. When it was reported that Evans’ dna could not be excluded from the dna found on the nail in the bath, Nifong supporters jumped on this as the smoking gun. What a great point Bannon made about Meehan’s dna (possible just one cell) being found. Proves without a doubt how easy it is to transfer dna.

A: Absolutely. As he was eviscerating Meehan on the stand—essentially getting the doctor to admit to having participated in a conspiracy to obstruct justice—I don’t think anyone realized that Bannon was speaking extemporaneously. (I certainly hadn’t realized it.) Meehan wasn’t expected to be in court last Friday: the defense, as far as I know, hadn’t prepared a detailed cross-examination of the doctor.

Under these circumstances, Bannon’s performance was stunning.

Q: Off topic, but could it be possible that Victoria Peterson is the so called “handler” for the accuser on behalf of Nifong?

Q: Why does her family have to go through Nifong to speak to her? Where does he have her hiding?

A: Very good questions: again, where are the so-called “victims’ rights” groups—NOW, Laura Blasberg, even the NAACP? Their silence on this matter speaks volumes as to their true motives on this case.

Q: I would love to hear your opinions concerning what is happening with the decline of newspapers and blog reporting. Are we witnessing a revolution?

A: The best way to approach this issue is to remember that we’ve seen good and bad newspaper reporting on this case, just as we’ve seen good and bad blogging on the case. It’s true that the bad newspaper reporting has been unusually bad (New York Times, Herald-Sun) and the good newspaper reporting has largely been confined to the N&O.

Peculiarities of this case, moreover, have made it unusually welcoming for a blogger. Kirk Osborn, very soon after the indictments, made the risky but (in retrospect) brilliant decision to post critical police documents as part of his early motions. These documents (Kim Roberts’ statement, Jarriel Johnson’s statement) should have formed the heart of the state’s case. That they instead were wholly exculpatory suggested that Nifong had no evidence.

The prevalence of a large number of available documents—whether police reports, NC procedures, faculty remarks like the Group of 88’s statement—made active blogging possible.

In terms of how blogs have affected the case: we’re still in the midst of things, so it’s premature to judge. It would be hard to argue, however, that their overall impact hasn’t been a positive one.

Q: Wanted to ask you when you had the ‘Schedule’ entry up, KC - how did the local and national press receive you?

A: At both hearings that I have attended, I’ve tried to speak to as many people as I can. Some people who are covering the case know me; some don’t. Some are cordial and welcoming to me; others aren’t.

For my part, I have great admiration for the professionalism of the N&O reporters covering this case, which hasn’t been an easy one to cover, in part because it doesn’t fit easily into at least some expected narratives.

Q: More, this is a highly educated man whose field has an obvious nexus to law enforcement, etc. It begs the question: is it at all reasonable that Meehan thought that this could’ve been ok?

Q: While I hate to go against the tidal wave of exculpatory evidence, is there any way these students’ could be guilty of any of the charges? Is there a remote possibility that Nifong has the Ace of Spades up his sleeve?

A: No—to both questions.

On the first question: according to his website, Meehan is certified as an expert witness in six states. He knew exactly what he and Nifong agreed to intentionally do.

On the second question: remember that NC has an Open Discovery law (which Nifong has tried to circumvent, but it’s nonetheless on the books). If Nifong had an “ace of spades,” he would have to disclose it. Unfortunately for him, the material in his case file revealed that he doesn’t even have a two of diamonds. That’s a pretty bad hand on which to bet one’s career.

Nifong: DNA "Excludes" (Except When It Doesn't)

“DNA results,” said Mike Nifong on April 11, “can often be helpful, but, you know, I’ve been doing this for a long time, and most of the years I’ve been doing this, we didn’t have DNA. We had to deal with sexual assault cases the good old-fashioned way. Witnesses got on the stand and told what happened to them.”

As noted on Monday, Nifong failed follow this approach in a 1989 “gang rape” allegation that he oversaw. Then, police tested the accuser’s credibility—in part by having the person supervising the investigation actually speak to the accuser. When “embarrassing” contradictions in her story were discovered, Nifong dropped the charges. The accuser never “got on the stand and told what happened to [her].” Instead, the prosecutor exercised discretion, as he is required to do under the North Carolina Rules of Professional Conduct.

In fact, before the DNA results failed to give him what he needed politically in the lacrosse case, Nifong seemed to believe exactly the opposite of what he suggested on April 11. In a 2000 case, he maintained that since DNA evidence trumped witness identifications, DNA tests could—and should—exclude the falsely accused.

In early 2000, two rapes occurred in the Trinity Park neighborhood, off Duke’s east campus. Acting under strong pressure from the Trinity Park “community,” police charged a black homeless man, Leroy Samuels, based solely on an identification from the second woman who was raped. According to the April 8, 2000, edition of the Herald-Sun, Ed Sarvis (last heard from confirming that the DPD has an official policy of disproportionately meting out punishment to Duke students) expressed confidence in the department’s actions—although, he added, “we’re still in the process of collecting probable cause.” Samuels could not meet his $150,000 bail.

Maybe the police should have tried a little harder to ascertain probable cause before making an arrest. After Samuels was charged, the police sent a rape kit to the State Bureau of Investigation lab. Lacking any political pressure for a fast turnaround, the lab took more than three months to perform its tests. When the results came in, no match existed for Samuels’ DNA. But a male DNA specimen was found. Technicians ran the result through a national crime database, revealing the DNA of Jeffrey Lamont McNeill, who subsequently was charged with the crime.

According to the July 12, 2000 N&O, the prosecutor issued a definitive written statement: “Results of DNA testing exclude the defendant as the perpetrator of this crime.”

The prosecutor’s name: Mike Nifong.

In 2000, then, Nifong viewed DNA as so important that it would “exclude” someone he had already charged with the crime, someone who the victim had identified. (And yes, in this case, there was a real victim.) By 2006, not only had Nifong abandoned his position on DNA (even as most others in law enforcement have become more reliant on DNA evidence), but, on April 10, in a conversation with Dr. Brian Meehan, he contended that a finding of other males’ DNA was not even potentially exculpatory for defendants, and therefore should be excluded from Meehan’s report.

Nifong isn’t the only case-related figure to have performed a 180-degree change between the Samuels case and the lacrosse case. Writing in the July 11, 2000 Herald-Sun, John Stevenson penned an article on the Samuels dismissal framed wholly around the unreliability of eyewitness IDs vis-à-vis DNA evidence.

According to Stevenson,

The Samuels case is not the first time a Durham rape victim reportedly identified the wrong man.

Veteran lawyer Tom Loflin told The Herald-Sun two weeks ago that he once defended a rape suspect who ultimately was cleared by DNA evidence.

According to Loflin, the suspect was accused of raping a woman who lived near him in an apartment complex. The victim said the man broke into her apartment, brutally raped her and then returned to his own apartment.

Loflin said the victim claimed to be certain of her identification. So Loflin’s client was indicted.

But before the case went to trial, a DNA analysis cleared the suspect, even though DNA testing was not as sophisticated then as it is now, Loflin said.

“I have no reason to think this woman would lie,” Loflin added. “I think she was just outright mistaken.”

Loflin said academic studies have proven that, in general, eyewitness testimony is “enormously unreliable.

“Only a tiny fraction of eyewitnesses get it correct,” Loflin said. “This now has been established by DNA testing.”

Nevertheless, juries still tend to think that eyewitness testimony is the strongest form of evidence, even though it actually is the weakest, Loflin contended.

“You have juries believing victims and other eyewitnesses who are notoriously unreliable,” he said. “Juries really need to be educated that eyewitnesses are extremely shaky. It’s dangerous to convict someone on their testimony if there is no corroborating evidence, such as fingerprints or DNA.”

It appears that Stevenson, much like Nifong, has changed his mind about the value of DNA and the sanctity of even the most unreliable and procedurally flawed eyewitness identifications.

In a June letter to the New York Times, St. Louis attorney Thomas Schlafly offered a stinging rebuke of Nifong’s “old-fashioned” comment:

There’s a big difference between convicting a defendant without DNA evidence because the technology did not exist and convicting a defendant when DNA evidence is available and the DNA results are negative.

In the first instance, there would have been no DNA evidence to counter the testimony of witnesses. In the second, such DNA evidence exists and is exculpatory.

It turns out the actual situation is even worse than Schlafly imagined.

Based on his conduct in the Samuels case, Nifong once believed that when “DNA evidence exists and is exculpatory,” rape charges must be dropped. After his pre-primary publicity barrage, however, his beliefs clashed with his personal and political needs. And so, in early April, Nifong would deem irrelevant for Collin Finnerty and Reade Seligmann the same type of test results that freed Leroy Samuels, while the district attorney joined Meehan to do everything they could to ensure that these results would never see the light of day.

The Nifong motto:

In 2000, the DNA excludes; in 2006, exclude the DNA.