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Duke case: Professor Baker still unrepentant


Michael Gaynor
December 22, 2006


William Hissey is a college student in Florida.

Former Duke Professor Houston Baker is now a Vanderbilt professor.

The two view the Duke case about as differently as possible..

Mr. Hissey recently wrote an e-mail letter to Professor Baker asking him some pertinent questions on his current stance on the Duke case.

Mr. Hissey hoped that Professor Baker and the "Group of 88" professors at Duke have some remorse for their initial comments and actions regarding the Duke case.

Mr. Hissey's letter:

"Professor Baker,

"My name is William Hissey and I am a student at Eckerd College in St. Petersburg, Florida. I have done quite a bit of research recently on something you are very familiar with, the Duke Lacrosse scandal. I know where you stood on the case in the immediate weeks following the incident. However, in light of all the information that has developed regarding the case, I have some questions for you.

"Has your opinion on the matter changed in any way?

"You issued a public letter denouncing the 'abhorrent sexual assault, verbal racial violence, and drunken white male privilege loosed amongst us' and demanding the 'immediate dismissals' of 'the team itself and its players.'

"Would you take those comments back if you could do it again?

"It puzzles me how you make such a statement without proper evidence against the indicted three players. I am not trying to insult you in any way, but I am truly interested to know if you regret issuing that letter. Here are some more questions I have for you.

"If it turns out that the woman who was allegedly raped is in fact lying, will you apologize for your immediate actions to the players and their families?

"What is your opinion on the Tawana Brawley case that smeared our criminal justice system and the innocent lives of several wrongfully accused men?

"When that case was going on, what was your immediate reaction?

"Do you think if the Duke case is similar to the Brawley fiasco, the alleged victim will hurt the chances of justice for rape victims in the future?

"Do you think the way Durham District Attorney, Mike Nifong has handled the case is wrong in any way? It is now very clear that he went ahead with the case to gain politically by making an example of the Duke three and creating a story that he knew would cause the nearly 100 percent liberal news stations to have a field day with. If the three accused were not students at Duke and kids of wealth, which has sort of become a crime in the eyes of many, there is no way he would have went ahead with the case with no DNA evidence whatsoever. He withheld exculpatory evidence in favor of the defense, used a photo lineup with only Duke University players, and even charged Reade Seligman when he has more than three strong alibis that prove he could not have been at the house when the alleged rape occurred. This case should have been dropped immediately, but people like yourself have dragged it out and smeared the lives of three innocent men because of your own personal agendas.

"You said in your letter, 'We cannot have faith in an administration that allows the players behavior. Canceling the season is not enough, the coach should be dismissed and the participating players should be as well.'

"You should have said. 'We cannot have faith in an administration or faculty who abandon their students and presume guilt when there is no evidence. Until, this case most people accused of a crime are presumed innocent until they are proven guilty. However, in this case, the players were guilty from the start and it is an absolute travesty. Coach Mike Pressler should have in no way been forced to resign, but instead President Brodhead and the professors in the Group of 88 should have. In the press release, Vanderbilt University said they hired an honorable man when they hired you, but the only way you can gain some honor back is by standing up and apologizing and urging the other professors who signed that petition to apologize as well. Until then, by hiring you Vanderbilt University has lost a great deal of prestige in my eyes.

"I would not allow my younger sister to attend Duke University if she wanted to when she is ready for college in the next few years. And no, it is not because I feel she is unsafe with alleged rapists in the lacrosse program, but really for the bigger crime, the lack of backbone in the administration, faculty, and staff.

"As you can see, I think the way the professors at your former university, one of the top institutions in the country, abandoned the players is just wrong. I am trying to get some closure on whether or not any of the Group of 88 professors at Duke are stepping up and apologizing for their actions.

"I would greatly appreciate a response to this e-mail. I am sure you have received many similar messages, but I would like to hear your opinion on the questions I raised. Any time you could offer me would be a wonderful treat.

"Best Regards and Happy Holidays,

"William Hissey"

Good news: Professor Baker had the decency to respond.

Bad news: That was as decent as he got.

Professor Baker:

"I really have no apologies to make for what I wrote, or for any public statements thereafter. The Lacrosse Team was an out-of-control team at Duke, and many higher-ups knew it. At least one faculty memeber ¢‚¬ Peter Wood ¢‚¬ did too and reported it to a Dean. It was no secret to high ups in athletics and academic adminsitrations that one player was on probation for assaulting a gay man and that a number of others were on Durham police blotters. The neighborhood where the team was resident talked of the players as behaving 'like a bunch of farm animals.' Why are you so interested in the defense of such young men? Why would you suggest they were 'abandoned'? What does that even mean? I can not speak for a faculty of 88, but I do know that the privilege and secrecy and uncivil (and yes crimiinal) activities of Lacrosse at Duke were not acceptable to many of those who believe universities are made great by their intellectual projects. Your opinions, of course, of who should and should not have been dismissed are predicated upon your best reading of the situation. You may be right. As for 'honor,' I suppose it is a relative term. There are those who believe the thousands of young men and women who have died in Iraq have done so as a result of an honorable American war. I believe they were dispatched into murderous territory by privileged, greedy, lying, and unconscionable men. You realize, of course, that I have received hudnreds of emails from people ¢‚¬ most of whom I don't know ¢‚¬ reading the Duke situation in ways completely different from you. They like what I did and said and believe it was not only honorable, but also courageous. Vanderbilt Univrsity ¢‚¬ where I am very, very happy situated ¢‚¬ feels like those hundreds. I shall not write to you again, nor open an email from you. But you seemed ¢‚¬ at the outset of your email, at least ¢‚¬ to be an honorable man. I wish you good holidays.

"Professor Baker"

Mr. Hissey is honorable, and furious:

"t really infuriates me how the professors at Duke, like Houston Baker, could just abandon their students and instead of being criticized for it, they are praised.

If the three men were African Americans on the Duke basketball team and an over zealous, white District Attorney tried to convict them with as little evidence as their is in this case, Baker would be demanding for the removal of Nifong. He would not be demanding for the dismissal of the entire basketball team and Coach K. He would be protesting on how minorities are continuously wronged in the criminal justice system in the United States. Yet, that is exactly what he did with the lacrosse situation and I think it is just wrong.:

Mr. Kissey is right, of course.

Professor Baker seems incapable of remorse.

Mr. Hissey emailed me: "Realistically, as you have stated, if the three were African American, there is no way at all that Nifong would have went ahead with the case because it would have severely hurt his chances of being re-elected as district attorney. He would have lost the African American vote that helped him win and the case would have been dropped a long time ago."

Add Vanderbilt University to the list of universities with administrations that are out-of-control.


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Michael J. Gaynor, born in New York in 1949, has been practicing law in New York for more than thirty years. A member of the Association of the Bar of the City of New York, he is now a solo practitioner and admitted to practice in the New York State courts, the United States District Court for the Southern and Eastern Districts of New York, and the United States Court of Appeals for the Second Circuit.

In 1969 Gaynor graduated magna cum laude, with honors in Social Science, from Hofstra University's innovative New College, then a three-year program supported by the Ford Foundation.

In 1972 Gaynor received his doctorate of jurisprudence degree from St. John's University School of Law, where he was in the top 10% of his class. He won the American Jurisprudence Award in Evidence and served as an editor of the Law Review and the St. Thomas More Institute for Legal Research. He wrote an article on the Pentagon Papers case for the Law Review and two articles on obscenity law for The Catholic Lawyer, in addition to overseeing the Law Review's commentary on significant developments in New York law, then called "The Quarterly Survey of New York Practice."

The day after graduating from St. John's Law School, Gaynor joined Fulton, Walter & Duncombe, a Manhattan law firm with offices at Rockefeller Center. Gaynor worked with that firm, first as an associate and then as a partner, through 1996. He engaged in general practice, involving corporate law, federal and state litigation, mergers and acquisitions, trusts and estates law, tax law, and other areas of law, on behalf of the firm's clients, including International Flavors & Fragrances Inc., Carvel Corporation, Tenneco Inc., UniWorld Group, Inc., and Palisades Geophysical Institute, Inc., as well as substantial charitable organizations, other corporations and individuals.

In 1997 Gaynor and Emily Bass formed the law firm of Gaynor & Bass. For more than five years, Gaynor & Bass conducted a general legal practice, emphasizing litigation, and represented corporations, individuals and a New York City labor union. Notably, Gaynor & Bass prevailed upon appeal to the United States Court of Appeals for the Second Circuit in a seminal copyright infringement case, Tasini v. New York Times, against newspaper and magazine publishers and Lexis-Nexis. The United States Supreme Court affirmed, 7 to 2, holding that the copyrights of freelance writers had been infringed when their work was put online without permission or compensation. Bass, as a solo practioner, had filed the case on behalf of a group of freelance writers, and the United States District Court had granted the defendants' motion for summary judgment on liability.

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Ashley: We Won't Apologize



A refusal to apologize appears to be in the air this week in Durham. First, the (rump) Group of 88 defiantly promised to continue their crusade even as the case they hoped to exploit has collapsed. Then, Bob Ashley offered an unapologetic defense for his work at the Herald-Sun.

Much like the Group of 88, Ashley has expressed bafflement as to why his paper¢‚¬„¢s transparently pro-Nifong coverage was cited by the defense as one of four factors in the change of venue motion. In an interview with Editor and Publisher, Ashley reinvented the past by fantastically claiming that not only did the H-S offer fair and balanced coverage from the start, but it actively upheld the defendants' presumption of innocence.

Ashley neglected to explain how articles like his post-60 Minutes "roundtable" (which contained only commenters sympathetic to the case going to trial) fit into this agenda. Nor is it clear how the H-S upheld a presumption of innocence in its post-election editorial asserting that since ¢‚¬Å“an upcoming trial . . . is sure to draw major media attention, it would be better for the players to have an opportunity to prove their innocence at trial.¢‚¬

While the E&P article projected a tone of skepticism about Ashley's claims, it failed to point out any of the myriad examples of the H-S editor's embarrassing performance over the past several months.

According to Ashley, ¢‚¬Å“we have tried to report the facts as they¢‚¬„¢ve been produced, the facts as they have been publicly available. And when the defense attorneys have produced evidence available to their clients, we have reported that.¢‚¬

That¢‚¬„¢s news to the H-S¢‚¬„¢ dwindling circulation base (down nearly 10 percent since the case started, a fact oddly unmentioned by E&P): at several points in the case, Ashley and his reporters went out of their way not to report evidence casting doubt on Nifong¢‚¬„¢s actions. Months passed before the paper interviewed Jim Coleman about his prescient calls for Nifong to step aside in favor of a special prosecutor. To my knowledge, the paper has never mentioned General Order 4077, the Durham regulation that Nifong violated when he ordered police to rig the April 4 lineup to show only suspects.

To E&P, the editor spoke of the difficulty of getting ¢‚¬Å“breaking news¢‚¬ on the story. (The N&O¢‚¬„¢s Joe Neff has seemed to succeed here; perhaps he was just lucky.) ¢‚¬Å“Are there bits here and there, given hindsight, we would have liked to have reported sooner? Yes,¢‚¬ Ashley mused. ¢‚¬Å“I wished we had sources and had ferreted them out, but it wasn¢‚¬„¢t there.¢‚¬

There¢‚¬„¢s little evidence that either Ashley or his reporters have worked very hard on such matters. In an October appearance at Duke, the editor suggested that the paper might do more with the viciously anti-Duke attitudes of some residents of the Trinity Park neighborhood and the troubling actions of the Durham Police Department. In the 10 weeks since he made his remarks, the H-S hasn¢‚¬„¢t carried even one story on either issue.

Tilting both news and editorial coverage in such a one-sided direction carries severe risks: if the paper¢‚¬„¢s side turns out to have no evidence and to have engaged in massive prosecutorial misconduct, it¢‚¬„¢s unlikely that the paper¢‚¬„¢s sources will provide much valuable information.

To my knowledge, the Herald-Sun ¢‚¬Å“broke¢‚¬ three lacrosse case stories, each of which came from obvious prosecution leaks and seemed designed to rebut troubling developments for Mike Nifong.

Two of these ¢‚¬Å“scoops¢‚¬ proved inaccurate.

The first inaccurate tale was John Stevenson¢‚¬„¢s borderline fraudulent recapitulation of the DNA ¢‚¬Å“evidence,¢‚¬ which he (along with pro-prosecution NAACP ¢‚¬Å“case monitor¢‚¬ Irving Joyner) presented in the summer as a major breakthrough for Nifong. In his article, Stevenson suggested that the true facts regarding DNA had been concealed¢‚¬a correct supposition, as we know now. But, he claimed, the defense, not Nifong, had done the concealing. The story that changed the case, in short, was right there under Stevenson¢‚¬„¢s nose. And he managed to present it in a pro-Nifong fashion¢‚¬no easy task.

Several weeks later, Stevenson (whose puff pieces regularly were reprinted on the Nifong campaign website) continued to do Nifong¢‚¬„¢s dirty work. On November 2, he cited an affidavit from Platinum Club owner Victor Olatoye disputing 60 Minutes¢‚¬„¢ account that the accuser was dancing, in a most limber fashion, only days after the alleged attack. A critical swing in public opinion for Nifong, it seemed. The next day, however, the H-S had to retract the story after Olatoye admitted he was wrong.

The ¢‚¬Å“accurate¢‚¬ H-S scoop, meanwhile, came in a September story by Ray Gronberg designed to minimize damaging information from the N&O and the Duke Chronicle about Sgt. Mark Gottlieb¢‚¬„¢s record of disproportionately arresting Duke students for alcohol-related offenses. But the ¢‚¬Å“scoop¢‚¬ unintentionally made things worse for Nifong: the Durham PD went on record admitting that Gottlieb was carrying out an official departmental policy.

Nor could the piece be characterized as an example of good journalism: Gronberg admitted in the article he had never looked at the case files of the students Gottlieb had arrested. He blamed the oversight on ¢‚¬Å“Bethany¢‚¬ (no last name provided), an employee of Durham attorney Bob Ekstrand who had refused to give him the information. Yet Ekstrand¢‚¬„¢s office has no one named ¢‚¬Å“Bethany,¢‚¬ and attempts to track down this mysterious figure have thus far proved unsuccessful.

Ashley conceded the problem of not knowing about the Nifong-Meehan DNA conspiracy. But, he added, ¢‚¬Å“We have reported the facts as they have become known and it has been an unfolding story we could only report as it unfolds.¢‚¬

It is unclear how that philosophy would explain the single worst ¢‚¬Å“news¢‚¬ article on the case in recent months. In early November, Stevenson suggested that a North Carolina appeals court¢‚¬„¢s decision upholding the rape conviction of a stepfather whose semen was found on his stepdaughter addressed ¢‚¬Å“a witness-credibility issue that echoes the Duke lacrosse rape case.¢‚¬ No other newspaper reported the decision in anything even resembling this manner.

E&P reporter Joe Strupp got a first-hand taste of H-S editorial policy in analyzing the editorial on Nifong¢‚¬„¢s recusal. The editorial, Strupp correctly noted, ¢‚¬Å“made it appear as if [the recusal] was a courageous move by Nifong rather than a forced removal prompted by his own poor actions.¢‚¬ Moreover, the editorial ¢‚¬Å“stopped short of openly criticizing Nifong, or pointing out that recent revelations indicate the lacrosse player¢‚¬„¢s guilt is much less-apparent than it was months ago. Instead, the paper urges readers to remember that the suspects could still face jail.¢‚¬

Massive prosecutorial misconduct, including the possibility of a D.A. abusing his authority to frame innocent people, is not a theme that has interested H-S editorial writers over the past seven months. Strupp notes that Ashley himself doesn¢‚¬„¢t write H-S editorials. But the editor set the tone that all subsequent editorials have followed in a July column, where he cited the work of Andrew Cohen to suggest that the case needed to go to trial, regardless of Nifong¢‚¬„¢s misconduct or Reade Seligmann¢‚¬„¢s demonstrable innocence.

In the interview, Ashley came as close as he has at any point in the case to admitting a motive for his paper¢‚¬„¢s bias. The paper, paraphrased E&P, needs ¢‚¬Å“to maintain its relationships in the city and continue to report after larger media outlets leave.¢‚¬ In other words: Duke students don¢‚¬„¢t subscribe to the H-S. But Nifong enablers do. If the paper had to avoid the truth so as not to alienate its customer base, so be it.

E&P yesterday published a letter responding to Ashley's claims:


I suppose I shouldn't have expected anything other than defense of the rightness of their ways, but as I was reading the words of the local paper's editor, it seemed that all of Nifong's supporters are trying to shield one another, and one of their arguing points is that some charges are still pending against the accused, and the DA still believes in the case. If Nifong actually does still believe in his case, at least we know that one reason for his past behavior was extreme stupidity. The same can be said for that birdbrained editor. It's incredible that someone this gullible and naive is in charge of newspaper stories. The credibility of that newspaper must be approximately zero by now. And I don't think those guys learned anything at all from their blunders. It sure doesn't sound like it. They seem every bit as dumb today as they've shown themselves to be for the past year.

Not exactly the philosophy that will win the H-S too many Pulitzers, I¢‚¬„¢m afraid.

The Group of 88's Myths and Realities


If nothing else, the rump Group of 88 has demonstrated a talent for revisionist history. Their recent statement unsuccessfully attempted to explain away both the context and the actual wording of their springtime ad.

Myth #1: The Group of 88¢‚¬„¢s statement had nothing to do with the accuser¢‚¬„¢s March 14 allegations.

The new statement claims that many (unnamed) people have ¢‚¬Å“intentionally¢‚¬ misread the April 6 ad as, among other things, ¢‚¬Å“a comment on the alleged rape.¢‚¬

Reality

It¢‚¬„¢s hard to treat this assertion seriously.

The lead section of the Group of 88¢‚¬„¢s statement mentioned ¢‚¬Å“what happened to this young woman.¢‚¬ I doubt that signatories were referring to the accuser¢‚¬„¢s dangerous habit of mixing alcohol and Flexeril; or were expressing their concerns about the impropriety of filing a false police report.

Moreover, the statement¢‚¬„¢s author herself, Wahneema Lubiano, conceded the connection between the statement and the case; ESPN reported that she prepared the statement fully aware that it could be seen as ¢‚¬Å“a as a stake through the collective heart of the lacrosse team.¢‚¬ A vivid image.

Finally, four of the ad¢‚¬„¢s eleven anonymous statements that allegedly came from Duke students specifically referenced the accuser¢‚¬„¢s allegations.

Myth #2: The Group of 88 was committed to upholding the presumption of innocence for the lacrosse players.

The new statement claims that the signatories ¢‚¬Å“stand firmly by the principle of the presumption of innocence.¢‚¬

Reality

As with the first myth, it¢‚¬„¢s hard to treat this claim seriously.

Several Group members independently commented on the case either shortly before or shortly after the ad appeared:

Houston Baker penned a public letter denouncing the ¢‚¬Å“abhorrent sexual assault, verbal racial violence, and drunken white male privilege loosed amongst us¢‚¬ and urging the ¢‚¬Å“immediate dismissals¢‚¬ of ¢‚¬Å“the team itself and its players¢‚¬;
William Chafe published an op-ed suggesting that the behavior of the whites who lynched Emmett Till provided the appropriate historical context through which to interpret the lacrosse players¢‚¬„¢ actions;
Wahneema Lubiano told the N&O that ¢‚¬Å“people can¢‚¬„¢t imagine that the woman could have made a false rape allegation.¢‚¬
These remarks do not suggest a passionate commitment to the lacrosse players¢‚¬„¢ presumption of innocence.

Several of the ad¢‚¬„¢s anonymous statements that allegedly came from Duke students also do not reflect the presumption of innocence. One anonymous student allegedly said, ¢‚¬Å“No one is really talking about how to keep the young woman [the accuser] central to the conversation, how to keep her humanity before us.¢‚¬ Another anonymous student allegedly said, ¢‚¬Å“If something like this happens to me . . . what would be used against me¢‚¬my clothing?¢‚¬ A third anonymous student allegedly said, ¢‚¬Å“Duke isn¢‚¬„¢t really responding to this. Not really. And this, what has happened, is a disaster.¢‚¬„¢

These remarks do not suggest a passionate commitment to the lacrosse players¢‚¬„¢ presumption of innocence.

Finally, and most obviously: if the Group members were so concerned with presumption of innocence back in April, why didn¢‚¬„¢t they include those three words somewhere in their statement? And why, after all this time, has not even one of the 87 who signed the ¢‚¬Å“clarifying¢‚¬ statement denounced Mike Nifong for mistreating their own institution¢‚¬„¢s students?

Myth #3: In saying ¢‚¬Å“thank you¢‚¬ to anti-lacrosse player protesters, committing themselves to ¢‚¬Å“turn up the volume,¢‚¬ and announcing that the affair ¢‚¬Å“won¢‚¬„¢t end with what the police say or the court decides,¢‚¬ the Group of 88 in no way prejudged the case.

The new statement claims, ¢‚¬Å“We do not endorse every demonstration that took place at the time. We appreciate the efforts of those who used the attention the incident generated to raise issues of discrimination and violence.¢‚¬

Reality

As with the first two myths, this claim, too, is difficult to treat seriously.

In the Group¢‚¬„¢s after-the-fact justification, 88 Duke faculty members failed to notice protesters who had branded the players guilty, even though the potbangers received extensive media coverage at the local, statewide, and national level. The Group of 88 also failed to notice the ¢‚¬Å“wanted¢‚¬ posters that were plastered around campus. So when their statement said ¢‚¬Å“thank you¢‚¬ to the protesters, Group of 88 members were actually thanking other, unidentified protesters.

In the event, the rump Group¢‚¬„¢s statement¢‚¬just like the original Group¢‚¬„¢s statement¢‚¬goes out of its way to thank the potbangers. The rump Group stated, ¢‚¬Å“We appreciate the efforts of those who used the attention the incident generated to raise issues of discrimination and violence¢‚¬¢‚¬the very agenda that the potbangers claimed to support as they held signs demanding ¢‚¬Å“Castrate¢‚¬ and ¢‚¬Å“Time to Confess.¢‚¬

As Stephen Bainbridge points out, the rump statement appears to bolster its contention through a distorted quotation:


The ad thanked "the students speaking individually and...the protesters making collective noise. We do not endorse every demonstration that took place at the time. We appreciate the efforts of those who used the attention the incident generated to raise issues of discrimination and violence."

Notice the strategic use of ellipses in the second paragraph's quotation from the original ad. Here's the relevant passage of the original ad in full text:

To the students speaking individually and to the protestors making collective noise, thank you for not waiting and for making yourselves heard.

Is it just me, or does thanking students for "not waiting" - presumably for the legal system to do its thing - sound a lot like rendering a judgment?

In fact, the Group¢‚¬„¢s new claim that the April 6 ad dealt not with the lacrosse case in particular but broader problems of racism and sexism in general mimics the very same strategy adopted by . . . the potbangers.

On April 10, shortly after defense attorneys announced there were no DNA matches, it briefly appeared as if the case would end. Potbanger leader and Duke graduate student Rann Bar-on predicted that ¢‚¬Å“the media will turn to a pretty harsh, but pretty short-term assault on us (the people who ¢‚¬Ëœjumped to conclusions¢‚¬„¢...we will see that phrase a lot in the near future).¢‚¬ To address the problem, he recommended that the potbangers


focus on the notion that this case merely uncovered a far deeper problem, namely the sense of entitlement and privilege so pervasive on Duke's campus. Duke-Durham relations are tense for a reason: Duke kids are upper-class, rich, entitled, privileged and so on. This case merely highlights their lack of respect for the community in which they live. The players¢‚¬„¢ guilt or lack thereof has no effect on this.

Bar-on wrote these words on April 10. In their new statement, the Concerned (with Being Sued) Duke Faculty are following in the potbangers¢‚¬„¢ steps: to avoid expected condemnations of having rushed to judgment, they contend that their goal all along was ¢‚¬Å“a far deeper problem,¢‚¬ wholly unconnected to the condemnations of the lacrosse players.

Some might deem this approach the height of cynicism.


Myth #4: The ¢‚¬Å“clarifying¢‚¬ statement will limit the Group of 88¢‚¬„¢s legal liability.

Reality

Given that this new statement was undoubtedly cleared by a lawyer, I¢‚¬„¢d suggest that the rump Group find new counsel.

I hear that Mike Nifong might be looking for work soon. Given how much the Group of 88 has assisted him over the past ten months, perhaps he¢‚¬„¢d be willing to take their case on a pro bono basis?

Former Duke Lacrosse 'Rape' Prosecutor Charged With Withholding Evidence, Misleading Court
Wednesday, January 24, 2007

E-MAIL STORY PRINTER FRIENDLY VERSION
AP


Jan. 24: Durham District Attorney Mike Nifong reviews additional complaints brought against him at the North Carolina State Bar in Raleigh, N.C.
RALEIGH, N.C. ” Former Duke lacrosse rape prosecutor Mike Nifong has been slapped with additional ethics charges by the state bar association, which has accused him of withholding DNA evidence and making misleading statements to the court.

The new charges by the North Carolina State Bar against Durham County District Attorney Mike Nifong were announced Wednesday and could lead to his removal from the state bar, according to a copy of the updated complaint. Nifong last year indicted three men from the Duke lacrosse team on charges that they raped a stripper at an off-campus party in March of 2006.

Click here to read the amended complaint against Mike Nifong.

Since the players were indicted, the rape charges have been dropped ” although sexual assault and kidnapping charges still stand ” the accuser has changed her story about what happened that night multiple times, and Nifong has come under heavy fire for his handling of the case, withholding evidence from defense attorneys and not coming forward with DNA evidence that may have exonerated the players.

(Story continues below)

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Duke Student on Case Nifong on Trial Duke Accuser's Cousin Responds DA Wants Out Nifong appeared with his attorney, David Freedman, at a procedural conference Wednesday morning to discuss scheduling and other administrative details of the ethics complaint. His presence was not mandatory.

Nifong declined to comment to reporters after the hearing, referring all questions to his attorney.

"I'd say anytime any charges are filed with the state bar they're all serious and we want to make sure we handle them all properly," Freedman said.

Nifong's trial on the ethics charges is technically set for May 11, although bar officials said at Wednesday's hearing they expect it will be pushed back to June. On Tuesday, Nifong received an extension to respond to the ethics complaint. His lawyer, David Freedman, said he was unsure of the new deadline.

Nifong's office arranged for a private lab to conduct DNA testing as part of the investigation into allegations the three Duke players raped the 28-year-old woman hired to perform as a stripper at a party thrown by the lacrosse team.

Those tests uncovered genetic material from several men on the woman's underwear and body, but none from any lacrosse player. The bar complaint alleges those results weren't released to defense lawyers in a timely fashion and that Nifong repeatedly said in court he had turned over all evidence that would potentially benefit the defense.

Nifong's actions constitute a "systematic abuse of prosecutorial discretion ... prejudicial to the administration of justice," the complaint read.

The amended ethics complaint filed Wednesday points out 11 instances between May and mid-December when Nifong said in court or in court filings that he knew of no additional exculpatory evidence, additional results from DNA testing or conversations with the DNA experts that would help the defense.

But according to the bar complaint, testing conducted at DNA Security Inc. had concluded by April 10 that none of the samples provided to police by 46 lacrosse players matched any material recovered from the accuser's "rape kit." A week later, Nifong charged Collin Finnerty and Reade Seligmann with rape.

In another example cited by the bar in its complaint, Nifong referred at a Sept. 22 hearing to repeated defense requests seeking full DNA results and any underlying information as a "witch hunt."

Defense attorneys were able to determine from other documents produced by Nifong that there may be additional test results they had not seen, the complaint said. They filed a motion in December that described the missing tests in detail.

At a hearing Dec. 15, the director of the DNA Security testified that he and Nifong agreed to include only DNA matches ” and not the results finding no matches between the accuser and the tested players ” in the report on his testing results. During the hearing, Nifong said he wasn't aware the test results were excluded from the report.

"The first I heard of this particular situation was when I was served with these reports ” this motion on Wednesday of this week," Nifong said, according to the bar complaint.

Outside of court, the bar complaint said, Nifong gave a different version of events to a reporter. "We ... were trying to avoid dragging any names through the mud," Nifong said.

The bar charged Nifong in December with breaking four rules of professional conduct, including making misleading and inflammatory comments about the lacrosse team early in the case.

The bar could exonerate Nifong, give him a warning letter or disbar him.

The state bar's new complaint alleges violations of the following rules: Prohibits an attorney from making false statements of material fact or law to a tribunal; prohibits "extrajudicial statements that the lawyer knows or reasonably should know will be disseminated by means of public communication and will have a substantial likelihood of materially prejudicing an adjudicative proceeding"; and prohibits a prosecutor from making extrajudicial comments that have a substantial likelihood of heightening public condemnation of the accused.

The bar's executive director, L. Thomas Lunsford II, said in a statement that, "the allegations in the amended complaint speak for themselves. Given the inordinate amount of publicity that this matter has already received and the fact that the criminal case is still pending, it would not be appropriate for the State Bar to elaborate publicly upon the substance of the complaint as amended."

Seligmann, Finnerty and Dave Evans have been charged with sexual offense and kidnapping stemming from the March 13 alleged incident. Defense lawyers have strongly maintained the players are innocent.

Nifong dropped rape charges last month after the woman wavered in her account of the alleged attack on key details. He stepped down from the case this month because the pending ethics charges created a conflict of interest.

State Attorney General Roy Cooper has appointed two lawyers in his office to review the case.

Meanwhile, the Raleigh News and Observer reported Wednesday that with the North Carolina attorney general reviewing the Duke lacrosse case, the new prosecutors must weigh evidence gathered by Nifong's chief investigator, whose private detective career was marked by ethics complaints.

Nifong hired Linwood E. Wilson, a gospel singer with limited experience working criminal cases, less than four months before the March 13 lacrosse team party at which the accuser claims the assault took place.

DNA & DOUBLE STANDARDS


By K.C. JOHNSON

January 31, 2007 -- READERS who followed The New York Times' coverage of the Duke lacrosse case probably experienced whiplash after reading the Monday Times editorial that hailed "modern DNA testing" for "steadily uncovering a dark history of justice denied."

The editorial mentioned two specific examples. The first came in Dallas, where a prisoner spent 18 years in jail, convicted of rape "based solely on faulty testimony of a witness." A DNA test that Texas prosecutors had fought to block then proved his innocence. The Times also praised North Carolina's innocence commission, which has urged police to vet non-credible witnesses more aggressively.

Powerful recommendations. Yet time and again over the past 10 months, Times reporters and columnists have acted just like the Texas prosecutors the paper's editorialists condemn.

After all, this is the same paper where sportswriters Selena Roberts and Harvey Araton published springtime columns dripping with a presumption of guilt in the Duke case. Their only evidence? The word of an accuser who had offered multiple, mutually contradictory, versions of events - just the type of person that the Times editorial board now demands be vetted more carefully.

This is also the same Times that in August published a 6,000-word front-page piece allegedly reviewing the case file. Reporter Duff Wilson insisted that - despite DNA test results from the state lab showing no match between the accuser and any lacrosse player - "There is also a body of evidence to support [D.A. Mike Nifong's] decision to take the matter to a jury."

That article went out of its way to exclude mention that a March 23 order filed by Nifong's office held, "The DNA evidence requested will immediately rule out any innocent persons." Instead, Wilson parroted the junk-science line that Nifong offered when the tests came back negative: Though "DNA results can often be helpful," the D.A. said he preferred trying "sexual assault cases the good old-fashioned way. Witnesses got on the stand and told what happened to them."

This is also the same New York Times whose editors watched silently last month, as Dr. Brian Meehan admitted that he and Nifong had entered into an agreement to intentionally withhold exculpatory evidence. His lab's tests, Meehan testified in open court, discovered that samples taken from the accuser contained the DNA of between two and four unidentified males - and nothing from any lacrosse player. This finding was never reported to the defense.

Meehan's revelations prompted widespread demands for Nifong's removal from the case; some editorial boards, appropriately, urged that the charges be dropped altogether. Times editors, on the other hand, ignored Meehan's testimony. Columnists Araton and Roberts likewise were silent.

Under pressure from the state bar, Nifong first dropped rape charges and then asked the state attorney general's office to take over the prosecution. All that remains of the case is the ever-changing story of one, non-credible witness - and DNA results of the type that the Times observes have exonerated dozens of wrongfully convicted people in the past.

Yet as allegations of sexual assault and kidnapping remain in place and the lacrosse players' ordeal approaches its 11th month, how have Times' editors responded? Silence.

Given its performance on the lacrosse case, the Times lacks the credibility to lecture anyone on the power of DNA evidence.

K.C. Johnson, a history professor at Brooklyn College, is co-author with Stuart Taylor Jr. of a forthcoming book on the Duke lacrosse case.

Cast of Characters


A few weeks ago, a couple of readers asked for a cast of characters list, especially for those who weren™t following the case in the initial months. Here, at least, is a partial list.

The Central Player

D.A. Mike Nifong: A figure about whom widely disparate views exist.

Here™s how he described himself, in a letter posted on his campaign website:

œI have earned the reputation among my colleagues in the court system as a prosecutor of the highest level of professional skill.
Here™s how some of his colleagues in the court system, in this case the State Bar, described him:

œNifong engaged in conduct involving dishonesty, fraud, deceit, or misrepresentation . . . prejudicial to the administration of justice.

The œInvestigators

Nifong: In a procedurally improper move, he assumed personal control of the case on March 24, eight days into matters.

Sgt. Mark Gottlieb: He abruptly vanished as lead investigator for the case after a September N&O article by Michael Biesecker revealed that he had a 10:1 disparity in arresting Duke students compared to the other three District 2 supervisors combined. The Biesecker piece was closely followed up by a Jared Mueller Duke Chronicle story that laid out convincing allegations of the sergeant engaging in deceit, excessive force, and ethnic intimidation in cases involving Duke students.

Before that time, best known for his œstraight-from-memory notes, a typewritten memo produced months after the events it allegedly described, and a document that conveniently filled in many holes which then existed in Nifong™s case.

Inv. Linwood Wilson: Nifong™s chief investigator, whose personal background and subsequent behavior in the case performed the impossible”making Gottlieb look ethical by comparison.

Best known for his December 21 œinterview with the accuser, which he conducted outside the presence of any law enforcement officer and in which she conveniently filled in all the holes in the case that had emerged since the Gottlieb memo.

Inv. Ben Himan: Best known for actually going through the motions as a police officer early on”reporting that Kim Roberts deemed the allegations a œcrock (March 20) and taking down the accuser™s descriptions of her œattackers on March 16. These descriptions bore no resemblance to either Reade Seligmann or Collin Finnerty.

Police Chief Steven Chalmers: Otherwise known as the police chief who™s always on either leave or vacation.

Academic Rogues

Wahneema Lubiano: Principal author of the Group of 88 statement, best-known for claiming books are œforthcoming when they seem not to have existed.

William Chafe: Former dean of faculty; author of March 31 op-ed asserting that the whites who lynched Emmett Till provided the appropriate context through which to interpret the lacrosse players™ behavior.

Houston Baker: Now departed for Vanderbilt, best-known for his racialist screeds and incredibly nasty, poorly spelled, e-mails.

Karla Holloway: Group of 88 member who has been describing herself as a œvictim of this affair since last June, even as she leveled criticism at the women™s lacrosse team.

Alex Rosenberg: Group of 88/œclarifying faculty member who has maintained that the ad was about excessive drinking and the availability of œhook-up with œrich, attractive co-eds.

Grant Farred: Group of 88 member who contended that Duke students registering to vote projected their œsecret racism onto Durham.

LawyersBrad Bannon: If the courtroom exchanges between Nifong and him were instead contests in Nifong™s one and only community service activity (his son™s little league), the games would have been called in the first inning under the œmercy rule.

Cracked the Nifong-Meehan DNA conspiracy with first the December 13 motion and then a stunning extemporaneous examination of Meehan at the December 15 hearing.

Joe Cheshire: Subject of this wonderfully done piece in this week™s Chronicle, and the person who has been the public face of the defense, coordinating strategy and emerging as Nifong™s bªte noire.

Wade Smith: To my knowledge, the only defense attorney of whom Nifong spoke positively in public. Of course, the remark came a few days after Nifong accused Smith, one of the most respected lawyers in the whole state, of violating the bar™s ethics canon with a clearly acceptable defense poll of possible community bias.

Kirk Osborn: Made the risky yet critical decision to make public Reade Seligmann™s defense”a move that allowed all to see that Nifong was putting a demonstrably innocent person on trial, thereby providing a face to the corruption of the process.

Jim Cooney: Brought in to coordinate Seligmann™s defense in October. Has distinguished himself as the master of the motion (especially a brilliant motion on the April 4 lineup) and for politely delivered remarks that decimated Nifong™s position”whether the D.A.™s false claim not to have received reciprocal discovery in the October hearing, or the Perry Mason moment in the December session.

The Heroes

In a case that has been so charged on lines of race and (to a lesser extent) gender, it™s ironic that almost all of the people who have most clearly distinguished themselves in the case are either African-American men or white women”each of whom said they behaved in this case as they would have in any situation.

Jim Coleman: Critical in two respects”first by leading a thorough but fair investigation of the lacrosse players™ personal behavior and then by becoming the first major legal figure to demand Nifong™s recusal. His June letter to the N&O looks prescient now.

Moezeldin Elmostafa: An African immigrant who swore out an affidavit bolstering Reade Seligmann™s alibi before the electronic aspects of Seligmann™s alibi had been established. For his trouble, he was arrested on a bogus charge dug up by Linwood Wilson, resulting in a quick verdict of not guilty.

Beth Brewer: Chief spokesperson and organizer for the Recall Nifong-Vote Cheek effort, a person with little background in political activity who devoted countless hours to the recall campaign, simply because she considered it the right thing to do.

Jackie Brown: Chief political advisor to the Recall Nifong effort”someone for whom the easy approach would have been to sit out the fall campaign, thereby avoiding alienating potential clients among Durham™s political establishment, but who instead masterminded what was almost a stunning upset in the November election.

Joseph Neff: N&O reporter who was virtually the only member of the print media to look critically at Nifong™s actions almost from the start, and has headlined an N&O team (Ben Niolet, Anne Blythe, Michael Biesecker, Eric Ferreri, and commentator Ruth Sheehan) that from late April onwards published more quality articles on the case than the rest of the mainstream media combined.

Kerstin Kimel: The Duke women™s lacrosse coach, the first person affiliated with Duke to speak out publicly on the men™s players™ behalf, and a critical person behind the scenes in keeping people on an even keel last spring”a time in which Duke didn™t even offer counseling services to any members of the lacrosse team.

2006 women™s lacrosse team

The Demagogues

Never passed up the chance to offer some race-bating rhetoric, despite the guidelines of the bar™s ethics code.

Al McSurely: Chief of the NAACP legal redress committee, and author of the outrageously biased legal memo on the case posted at the NAACP website.

Cash Michaels: Wilmington Journal reporter who in the fall started exposing Nifong™s misconduct, only to turn on a dime in recent months with articles filled with anonymous quotes taken from various on-line forums.

Wendy Murphy: Adjunct professor at a low-profile Boston law school and ubiquitous talking head on the case, has shown a disregard for facts that is remarkable for someone with a law license.

Chan Hall: Head of the NCCU student government™s legislative affairs committee and runner-up for speaker of the government; said in the spring that he wanted to see the Duke students prosecuted œwhether it happened or not. It would be justice for things that happened in the past.

The Zanies

œCousin Jakki a/k/a Clyde Yancey: The accuser™s sometime spokesperson (who the accuser said at another point was œout of the loop), who early in the case was described as an aspiring actress with non-existent parts in films that don™t exist.

Victoria Peterson: Only in Durham could the head of a DA™s citizens™ committee be someone who contended that the Duke Hospital tampered with DNA evidence, while she later attended a rally with a hate group and calling for the lacrosse house to be burned down. Most recently distinguished herself with a œrally for justice on the courthouse steps that attracted two people.

Charges In Duke Lacrosse Case To Be Dismissed

The Duke lacrosse saga may finally be coming to a close.

ABC News reported on Tuesday night that the office of North Carolina attorney general Roy Cooper will announce that he is dismissing all charges against three Duke lacrosse players who faced multiple charges stemming from a sexual assault case.

ABC's sources close to the case did not know the basis for dismissing the charges or when an announcement might come.

The three players, Reade Seligmann, David Evans and Collin Finnerty were facing charges of first degree kidnapping and first degree forcible sexual offense. After the party on the night of March 13, 2006, one of two dancers hired to perform claimed she had been violently raped in a bathroom by members of the lacrosse team.

All three have steadfastly maintained their innocence, with Evans calling the allegations "fantastic lies."

Durham County District Attorney Mike Nifong dropped the rape charges in December after the accuser changed a key detail in her story, and recused himself a few weeks later after the state bar charged him with several ethics violations tied to his handling of the case. The North Carolina State Bar is scheduled to hold a hearing on Friday to consider a motion to dismiss the charges against Nifong. If convicted, Nifong could be disbarred.

Nifong's recusal put the players' fate in the hands of North Carolina Attorney General Roy Cooper, who promised "a fresh and thorough review of the facts" when he took over the case in January.

There were signs earlier Tuesday that an announcement from Cooper might come soon. Seligmann, 21, of Essex Fells, N.J., and his family arrived at Raleigh-Durham International Airport, and Smith said the Finnerty family was also expected to arrive later Tuesday from their home in Garden City, N.Y.

"We are not going to have any expectations until we hear officially," Smith said. "When we get the word, we'll have the word."

Evans' attorney, Joseph Cheshire, declined to comment when asked if his client was planning to be in Raleigh on Wednesday.

While Evans, 24, of Bethesda, Md., graduated the day before he was indicted in May, Duke temporarily suspended sophomores Finnerty and Seligmann in the wake of their arrest. Finnerty, 20, was also convicted in July in an unrelated assault case in Washington, D.C., and sentenced to six months of probation.

Finnerty and Seligmann were both invited to return to campus, but neither has accepted. John Danowski, the former coach at Hofstra who took over the Duke program last summer, has also said that both are welcome to continue their lacrosse careers with the Blue Devils.

Finnerty's father said it has been a ''horrific'' year, and said odds were low that his son would return to Duke.

"The waiting process is wearing us down emotionally," Finnerty's father, Kevin Finnerty, in a telephone interview. "We take comfort in the fact that these prosecutors are searching for the truth. And that's different from how we felt before their involvement."

Source: ESPN

LET THE BITCH BURN IN HELL!!!!!!!!!!


MILES TO DURHAM, N.CAROLINA

Carroll: Duke's sorry faculty

Thursday, April 12 at 12:00 AM
The most remarkable fact about the Duke lacrosse fiasco is not that it took nearly a year for obviously flimsy charges to be dropped against the players. That™s a long time, but it was only in January that the North Carolina attorney general took over the case from the corrupt Durham County district attorney.

Nor is it the fact that District Attorney Mike Nifong would so crudely exploit stereotypes of well-to-do white male athletes in order to entice black votes in a re-election campaign. Race-baiting is a time-honored political tactic, although one deployed more frequently decades ago ” and then mostly against blacks, of course.

The most remarkable feature of this legal debacle isn™t even the cheerleading for the prosecution that could be found in such major media as The New York Times. As biased and credulous as many reports were, a few were first-rate. For example, the late Ed Bradley of 60 Minutes deftly demolished the prosecution™s case in a report last fall.

No, the most astonishing fact, hands down, was and remains the squalid behavior of the community of scholars at Duke itself. For months nearly the entire faculty fell into one of two camps: those who demanded the verdict first and the trial later, and those whose silence enabled their vigilante colleagues to set the tone.

K.C. Johnson, a history professor at Brooklyn College, has followed every twist in the Duke scandal on his Durham-in- Wonderland Web site. He chronicles the faculty™s performance as the hysteria mounted.

œIn late March (2006), Johnson writes, œHouston Baker, a professor of English and Afro-American Studies, issued a public letter denouncing the ˜abhorrent sexual assault, verbal racial violence, and drunken white male privilege loosed amongst us™ and demanding the ˜immediate dismissals™ of ˜the team itself and its players.™ A week later, on April 6, 88 members of Duke™s arts and sciences faculty signed a public statement saying ˜thank you™ to campus demonstrators who had distributed a ˜wanted™ poster of the lacrosse players and publicly branded the players ˜rapists.™ By contrast, no Duke professor publicly criticized Nifong™s conduct.

David Evans, one of the accused, told 60 Minutes that he moved out of the house where the rapes of a black stripper allegedly occurred because of menacing mobs. The Duke president, no profile in courage, canceled the lacrosse season and fired the coach. As recently as a few months ago President Richard Brodhead was still defending the 88 professors who trampled on the presumption of innocence, going so far as to describe some of them as victims, too.

A few Duke professors did acquit themselves well or eventually locate some semblance of a spine. Law professor James Coleman denounced Nifong™s handling of police lineups. Seventeen members of the Duke economics department signed a letter in January criticizing Nifong and assuring student athletes they were welcome in their classrooms.

But for the most part the faculty either supported the branding of three athletes as racists and rapists, didn™t care enough about their plight to speak out, or were cowed into suppressing any call of conscience.

Would those athletes, facing a similarly dubious claim of rape, have fared any better at America™s other elite universities? The idealist yearns to answer yes. The realist, sad to say, knows better.