ADN

The DA's are out of control.

Check out this link, it's about that Daycare Center scandal in the late 80's. They had to change a bunch of laws and new trial rules. It was a huge fuck up, just like the one going on at Durham now.

Innocence Lost

Dateline

Which version will try to go with at trial?

Her story isnt really credible.

Court TV Will Have the Answer

I haven't commented much on the media coverage of the Duke lacrosse case, in part because several other bloggers (John in Carolina, Lead
and Gold) have analyzed the topic much better than I could have. But this morning, a disturbing column appeared, penned by Bob Ashley, the editor of the Durham Herald-Sun. Ashley's remarks seemed worthy of notice--partly because of their exceedingly narrow conception of what constitutes the "legal process"; partly because they might explain the remarkably passive attitude that the local press has exhibited in this case. (The work of the N&O's Joseph Neff stands in stark relief to this pattern.) The editorial pages of both the N&O and the Herald-Sun have hardly been imitators of Ben Bradlee in speaking truth to power.



Ashley hailed a column a couple of weeks back by CBS chief legal analyst Andrew Cohen, which accused the media of uncritically accepting the version of events offered by defense attorneys. Cohen's column made scarce mention of the coverage in the first six weeks of the case, nor did he note that, just maybe, one reason why there's been some turn is that many journalists no longer consider D.A. Mike Nifong credible, having learned that many of his early statements were inaccurate at best and deliberately misleading at worst. Cohen also decided not to mention that defense attorneys have, by and large, backed up their key claims with hard evidence.

Cohen complained that "we haven't had the privilege of seeing the case unfold at trial the way it is supposed to." Nothing in this case, however, has unfolded "the way it is supposed to." Nifong almost certainly violated the state bar's code of ethics in his inflammatory public statements, though this conduct served its purpose in ensuring his victory in the Democratic primary. He certainly violated Section 3.8, comment 2 of the ethics code in his refusal to meet with defense attorneys before issuing indictments, and in his decision to seek indictments before investigating the accuser's cellphone records and waiting for the second DNA tests. And, as I pointed out a while back, the photo lineup that Nifong ordered contradicted the norms everywhere else in North Carolina in at least four respects, to such an extent that he seemed to be operating under an entirely different legal system. These procedural violations were massive.

Flawed procedures beget flawed results. There's nothing that could come out at a trial, or at a later stage of this process, that could change our knowledge that these flawed procedures occurred--the record is already there. It's remarkable that Cohen, a TV network's chief legal analyst, could claim that a prosecutor can blatantly disregard procedures at every stage of the process, and that such behavior nonetheless is all part of the process as it is "supposed to" occur.

In an earlier Herald-Sun editorial (written I assume, by Ashley, judging from his sentiments in today's column), the editorial board reasoned, "Nifong's critics have questioned everything from his character to his legal savvy. We think that the 25-year veteran of the prosecutor's office must have some evidence, or he would have dropped the case long ago." Such a comment, of course, requires turning a blind eye to Nifong's unethical behavior in recent months--as Craig Henry pointed out in a fine post on the matter. But it also ignores an important fact: the lacrosse case is the state's first-high profile trial since North Carolina adopted an open discovery law, which requires the prosecution to turn over all of its material--not just evidence it considers exculpatory--to the defense, and to turn over all that evidence in a timely fashion.

As a result, we know far more about the facts of this case than would occur in most jurisdictions. Even if he possessed any evidence to substantiate his claims, Nifong couldn't hold it back to spring as a surprise at trial. Items such as the police reports containing the accuser's multiple, contradictory versions of what occurred; the initial statement of Kim Roberts a/k/a Pittman, terming the accusation a "crock"; the transcript of the procedurally flawed photo ID session; and the sworn summaries of the DNA and medical evidence all represent the sort of evidence that, in most jurisdictions, wouldn't be seen until the trial (and in most trials would represent the heart of the prosecution's case, not substantiate the defense version of events). Meanwhile, the attorneys for one of the players, Reade Seligmann, decided to publicly release the exculpatory evidence that Nifong violated the state ethics code so he wouldn't have to see--namely, the statements of two witnesses who were with him at the time of the alleged attack; records showing Seligmann was on the cellphone when the attack allegedly began; and, most damningly, an ATM video showing he was more than a mile away when the attack was allegedly occurring.

Neither the media nor outside observers are jurors, with a moral or legal requirement to wait until the end of a trial to form judgments. It doesn't take a Ph.D. to figure out that someone who's on a videotape a mile away from the scene of an alleged crime at the time the crime allegedly occurred is innocent. That no medical evidence exists to support the accuser's allegations; that the ID of Seligmann resulted from procedurally dubious circumstances; and that the accuser seemed unable to come up with anything resembling a consistent story only fortifies that belief. I wonder: what, exactly, could Cohen or Ashley expect to come out at a trial that would allow anyone to believe that a college student can rape someone from the distance of more than a mile? That Seligmann has a secret twin who was actually the person at the ATM machine while the rape allegedly occurred? That normal laws of space, time, and motion don't apply in Durham, North Carolina?

The arguments of Ashley and Cohen are so intellectually peculiar as to suggest ulterior motives. It's no secret that Cohen has been manhandled on this story by Dan Abrams (NBC's chief legal correspondent) and by the legal reporters from Fox. And I wonder whether Ashley would be so blas†™ ¢‚¬„¢¢‚¬Å¡‚© if Nifong's targets were Durham residents rather than out-of-staters.

This passive attitude also rationalizes Ashley avoiding asking some hard questions as to whether the revelations of this case suggest broader problems within Durham's law enforcement apparatus. News broke today that the lead investigator in the lacrosse case, Sergeant Mark Gottlieb (last seen overseeing the procedurally flawed lineup) is under investigation for assault, which allegedly included use of a racial epithet. (Can Nifong be far behind, appearing on CBS, as he did in the lacrosse case before any serious investigation had occurred, to opine, "The racial slurs involved are relevant to show the mindset †™‚¢‚¢¢¢¬…¡‚¬¢‚¬Å¡‚¦ involved in this particular attack. And, obviously, it made what is already an extremely reprehensible act even more reprehensible"?) Yet, as John in Carolina pointed out, the local media has, nearly 60 hours after the incident, not asked some basic questions--such as whether Gottlieb was on-duty at the time of the alleged incident and why the initial police report of the incident hasn't been made public. I suppose we all should, as Cohen and Ashley recommend, just wait for a trial to find the answers to these questions. Under this definition of journalism, we wouldn't even need journalists--court reporters could simply type up a summary of their day and release it to the papers.

An undercurrent of the columns by Cohen and Ashley, never explicitly stated but strongly implied, is that the Duke players have benefited from selective outrage--that these sorts of things occur in our criminal justice system all the time, usually without outside notice. I disagree: Nifong and Gottlieb hardly typify the American justice system. Moreover, while I'm obviously not a lawyer, I can't recall a single publicized case in recent years where procedural violations this massive were publicly known at this stage of the process. Normally, we don't hear about this sort of prosecutorial misconduct until the appeals process. (This, of course, is what happened in the Alan Gell case, which prompted the Open Discovery law.) In this respect, Nifong is the victim of his own decision to ignore the ethics guidelines and make his 50+ press appearances. He got the outside attention that served his short-term political interests--but he couldn't stop it once the primary had occurred, even though he no longer needed the free publicity.

As Chris Richardson wrote in an excellent recent post, recent massive miscarriages of justice have occurred on scales worse than what we've seen in Durham, though normally the victims were poor African-Americans. It seems to me that Chris is suggesting (and he can correct me if I'm wrong) that Rudolph Holton and James Tollman never should have gone to jail: had we known about the improper behavior of authorities in their cases at an earlier stage, the process would have been brought to a halt. What Cohen and Ashley seem to be saying, however, is no--that like the Duke lacrosse players, in the cases of Holton and Tollman the "process" should have played out, because massive prosecutorial misconduct is effectively part of the "process," and that the improperly accused (and even convicted) should have simply waited their turn, until an appeals court had time to hear their case. That Holton and Tollmann had to spend 16 years in jail as a result of the state's misbehavior? Too bad, apparently: that's part of the "process."

For journalists, who are, in part, supposed to serve as watchdogs of government officials and expose misconduct when they find it, this attitude strikes me as nothing short of bizarre.

Jul 23, 2006




As the dog days of summer grind on, there's been a shift in the image of Durham's image elsewhere as the result of last spring's lacrosse team party at 610 N. Buchanan Blvd. and its aftermath.

The oversimplified and hyperactive portrayal in the early days, of course, was of a city awash in poverty and sharply split along lines of race and class, not to mention between elitist, isolated, smug Duke and everybody else in town.

Now, I think, the image reflected in the tsunami of opinion freely offered by partisans from coast to coast is of a justice system ? and especially a district attorney ? run amok. An ad in The Chronicle, Duke's student newspaper, last week reflected the related assertion that Duke University and many in Durham have failed to rally to the support of clearly innocent suspects in the case.

The latest conventional-wisdom juggernaut may be right. It also may prove to be just as distorted as the first, when the dust settles.

Columns recently in two of the nation's most powerful newspapers addressed the issue in contrasting fashion. One tended to ratify the view of the suspects as good men wronged; the other methodically argued for continuing to withhold judgment.

The first was by New York Times writer Peter Applebome, a Duke graduate and former Chronicle colleague of mine.

In his "Our Towns" column in last Sunday's Times, he talked with hometown friends and mentors of Reade Seligman, an indicted lacrosse player from Morristown, N.J.

He acknowledged his Duke connections.

"But you don't need any ties to Duke," he wrote, "to look at the details that have emerged about the case -- the accuser's history of past accusations and multiple changing accounts of the crime, a lack of DNA evidence, a police lineup of only Duke lacrosse players, a second dancer's original statement saying no rape could have occurred -- and wonder why this case is still alive.

"Maybe the sophomore from New Jersey and his teammates are the monstrous incarnation of white, male privilege, or maybe this has become a cautionary tale of judgment before the fact."

It's against that conclusion ? offered far more stridently in national magazines and on television, especially the obsessive Fox News Channel -- that Washington Post columnist Andrew Cohen cautions.

Cohen sets out his thesis in his first paragraph:

"A collective sort of reverse insanity has descended upon the media as reporters try to cover the case of the Duke lacrosse players charged with raping a stripper at a party this spring."

Cohen notes correctly the shifting dynamic of the coverage and the public perception of the case.

Cohen faults the media for "tripping all over themselves to quickly and repetitively report the biased view of the young men's defense attorneys, family members and other supporters . . .There is just one defense-themed story after another."

Cohen takes aim at the national media, and singles out Newsweek for a cover story that was poignantly sympathetic toward the defendants.

At The Herald-Sun, barely a day goes by that we don't worry about impact of the coverage that we is, after all, being driven by events. We've tried to consistently remind that all the facts aren't out, and that the defense attorneys are releasing just what fragments of the total evidence they choose to make public.

I believe the most important point for all, media and public alike, is one Cohen made near the end of his column:

"Look, I don't know what happened at that house that night. And neither do you. And I wouldn't have done some of the things the prosecutor has done to this point -- he started the media onslaught, after all. And neither probably would you. It is possible that a savage rape occurred. And it is possible that the young men who have been accused are victims, themselves, of an irresponsible accuser. The point is that we don't know. We haven't seen all the evidence, haven't examined all of the testimony, haven't had the privilege of seeing the case unfold at trial the way it is supposed to."

At the end of the day, perhaps the image of Durham that will emerge is of a community that amid all the sound and fury weighed all of the facts and came to a reasoned judgment.

Bob Ashley is editor of The Herald-Sun. Contact him at (919) 419-6678 or by e-mail at [email protected]



This guy should be shot

The Durham Herald-Sun and the Raleigh News and Observer have weighed in again on the Duke Lacrosse case. Both opinion pieces still try to shore up the travesty that is DA Nifong†™‚¢‚¢¢¢¬…¡‚¬‚¢¢¢¬…¾

‚¢s politically motivated prosecution of an absurd case.


Let's talk sports

Put lacrosse case on a faster track
The first is an op-ed by a Duke professor (Orin Starn). Both Robert KC Johnson (†™‚¢‚¢¢¢¬…¡‚¬¢‚¬¦¢¢¬…œSh

ameless†™‚¢‚¢¢¢¬…¡‚¬?) and John in Carolina (†™‚¢‚¢¢¢¬…¡‚¬¢‚¬¦¢¢¬…œPr

of misrepresents Coach K†™‚¢‚¢¢¢¬…¡‚¬¢‚¬¦¢¢¬…œ) do an excellent job of addressing the errors and omissions packed into that short column. One point deserves mention here.


Starn writes:

But beyond the alleged sexual assault, there remain reports, uncontradicted so far, that some of the 46 white lacrosse players shouted the n-word at the two women at their party; and that one made that ugly "B-, Thank your Grandpa for my cotton shirt" comment. It's hard to understand how Coach K or anyone else could not see a "racial aspect" here, as much the result of loutish drunkenness as it may have been.
Starn is not quite honest here. The reports of the †™‚¢‚¢¢¢¬…¡‚¬¢‚¬¦¢¢¬…œn-word†™‚¢‚¢¢¢¬…¡‚¬? come mainly from the two dancers themselves. Both have given contradictory accounts of the evening and both have a motive to portray the lax players in as bad a light as possible. The comment overheard by the neighbor (the cotton shirt remark) came in response to a racially-charged comment by the second dancer. The good professor leaves all this out.

This is not a minor point. By focusing on the racial aspects of the case, Starn is helping to poison the jury pool in Durham. At this point Nifong†™‚¢‚¢¢¢¬…¡‚¬‚¢¢¢¬…¾

‚¢s best hope is to make the case about race and not about the facts. Starn and the News and Observer are helping him.

In its editorial the Herald-Sun girded up its loins and . . . issued a bold call for a speedy trial. Like its †™‚¢‚¢¢¢¬…¡‚¬¢‚¬¦¢¢¬…œriv

al†™‚¢‚¢¢¢¬…¡‚¬? the News and Observer, it still spins for Nifong even when it tries to take a bold, forthright position. Like most of the MSM, it refuses to confront all the disturbing facts in the case when it issues its agonizing reappraisals of the mess that is Durham justice.

Here are some of the lowlights:


To say that the case is like any other on Durham's docket is to deny reality. Intense national media scrutiny has been fed by attorneys' efforts to try the case before reporters and pundits instead of a judge and jury.
Talk about blaming the victim. The media frenzy took off before any of the defense attorneys said anything. The lacrosse team was convicted in a trial by media that Nifong fed with his interviews. But the H-S ignores that and implies that the defense team is at fault.


Defense attorneys have released a stream of damaging evidence -- although there is much they do not divulge -- that seems to undercut the prosecution's case and leads many to question Nifong's judgment.
They also are in error here. NBC†™‚¢‚¢¢¢¬…¡‚¬‚¢¢¢¬…¾

‚¢s Dan Abrams has seen the whole file that Nifong turned over.


And we hate to imagine the fallout if the lacrosse case winds up being decided by an election instead of in court.
Oh yes, the fallout (whatever do they mean?). That would be terrible. More terrible, apparently, than the way Nifong used the case to decide an election.


Duke and Durham need to learn lessons from this incident and decide how to make positive changes. But the healing can't really begin until all the truth comes out -- which is the purpose of a trial.
Actually, criminal trials are not the venue for establishing truth or helping Durham †™‚¢‚¢¢¢¬…¡‚¬¢‚¬¦¢¢¬…œlea

rn lessons†™‚¢‚¢¢¢¬…¡‚¬? or make †™‚¢‚¢¢¢¬…¡‚¬¢‚¬¦¢¢¬…œpos

itive changes.†™‚¢‚¢¢¢¬…¡‚¬? Trials determine the guilt of individual defendants.

The Herald-Sun is still dissembling as it calls for a speedy trial and it is shirking its duty. Instead of waiting for he truth, the paper should start digging into the mistakes made by the media, Nifong, and Duke. Isn†™‚¢‚¢¢¢¬…¡‚¬‚¢¢¢¬…¾

‚¢t that what a watchdog press is supposed to do?

The paper has no appetite for such work. Like most local media, they are loyal lapdogs for prosecutors. This is made clear by the gentle way they handle the questions about Nifong†™‚¢‚¢¢¢¬…¡‚¬‚¢¢¢¬…¾

‚¢s handling of the case.


Nifong's critics have questioned everything from his character to his legal savvy. We think that the 25-year veteran of the prosecutor's office must have some evidence, or he would have dropped the case long ago.
The DA gets the benefit of the doubt. From the beginning, the lax players were presumed guilty; their presumption of innocence went out the window back in March. But Nifong†™‚¢‚¢¢¢¬…¡‚¬‚¢¢¢‚¬Å¡‚¬

‚he †™‚¢‚¢¢¢¬…¡‚¬¢‚¬¦¢¢¬…œmus

t have some evidence.†™‚¢‚¢¢¢¬…¡‚¬? The Herald-Sun does not tell us what it might be, but they are sure he must have something. It is a touching to see the media place such childlike faith in a politician. It is a faith that is contradicted by the facts we know†™‚¢‚¢¢¢¬…¡‚¬‚¢¢¢‚¬Å¡‚¬

‚no DNA, no severe injuries, no date rape drug, no viable timeline, multiple false statements by the DA, absurdly contradictory accounts by the accuser and the second dancer.

Why, then, does the Herald-Sun cut him so much slack?

UPDATE: 7/6/06. I'm getting a lot of new traffic for this post. I invite new readers to take a quick glance back through the May and June archives. There are over a dozen posts on the Durham travesty there. For example:


Duke lacrosse: The News and Observer is still covering for Nifong

Duke lacrosse

From the cone of silence to Emily Litella

Durham City Police officers are accussed of involvement in an alleged assault outside a Raleigh sports bar just before midnight Thursday. The Associated Press today reports:

Raleigh police are investigating an alleged assault outside a sport bar that involved several Durham police officers, authorities said Saturday.

In addition to the criminal probe of Thursday's incident, Durham police Chief Steven Chalmers said in a statement his office is conducting an internal review. Chalmers' statement did not name the officers allegedly involved in the incident, citing department policy and state personnel privacy laws.
TV station WRAL reports:
Meanwhile, two investigators in the Duke lacrosse rape case had their jobs switched Friday, said Durham City Manager Patrick Baker. It's not clear if the changes, which involve temporarily placing two officers on administrative duty, are linked to the Raleigh assault investigation.

Baker, citing confidentiality rules involving personnel matters, would not link officers Sgt. Mark Gottlieb and R.D. Clayton to the assault investigation. [†™‚¢‚¢¢¢¬…¡‚¬¢‚¬Å¡‚¦]

The 29-year-old alleged victim told WRAL that racial slurs were exchanged in the bar's parking lot before a group of men surrounded him.
After reading the AP and local media accounts of the incident (WRAL, News14, N&O and Dur. H-S) as of 4 p.m. Sunday, nearly three days after the incident, the public is left with lots of questions the †™‚¢‚¢¢¢¬…¡‚¬¢‚¬¦¢¢¬…œnew

s organizations†™‚¢‚¢¢¢¬…¡‚¬? haven†™‚¢‚¢¢¢¬…¡‚¬‚¢¢¢¬…¾

‚¢t asked, or at least haven†™‚¢‚¢¢¢¬…¡‚¬‚¢¢¢¬…¾

‚¢t reported on.
Why isn†™‚¢‚¢¢¢¬…¡‚¬‚¢¢¢¬…¾

‚¢t there a police report of the incident available?
Usually a preliminary report is written up at the scene of an incident (it can later be added to),and immediately made available to media and interested members of the public.

Such reports are almost always the basis of crime news stories, which often are aired by electronic media within an hour or two of the incident. You've often heard reporters lead with, †™‚¢‚¢¢¢¬…¡‚¬¢‚¬¦¢¢¬…œAcc

ording to a police report I just obtained†™‚¢‚¢¢¢¬…¡‚¬¢‚¬Å¡‚¦.

†™‚¢‚¢¢¢¬…¡‚¬?

So why, more than 60 hours after the alleged assault, are we being told there†™‚¢‚¢¢¢¬…¡‚¬‚¢¢¢¬…¾

‚¢s no police report? Why aren†™‚¢‚¢¢¢¬…¡‚¬‚¢¢¢¬…¾

‚¢t news organizations telling readers how unusual that is? Why aren†™‚¢‚¢¢¢¬…¡‚¬‚¢¢¢¬…¾

‚¢t news organizations demanding to know why there's no police report?

Media, which eagerly told us the tax value of Reade Seligmann†™‚¢‚¢¢¢¬…¡‚¬‚¢¢¢¬…

¾‚¢s parents†™‚¢‚¢¢¢¬…¡‚¬‚¢¢¢¬…¾

‚¢ home, are so far unwilling to ask Durham City Manager Patrick Baker and Durham City Police Chief Steve Chalmers a very, very important question; or if they†™‚¢‚¢¢¢¬…¡‚¬‚¢¢¢¬…¾

‚¢ve asked, they†™‚¢‚¢¢¢¬…¡‚¬‚¢¢¢¬…¾

‚¢re not telling the answer:
At the time of the incident, were the Durham Police officers on-duty or off-duty?
Usually when police are involved in an incident and are off-duty, that's one of the first things we're told.

Perhaps City Manager Baker will tell us †™‚¢‚¢¢¢¬…¡‚¬¢‚¬¦¢¢¬…œcon

fidentiality rules involving personnel matters†™‚¢‚¢¢¢¬…¡‚¬? forbid him from answering the question. But it†™‚¢‚¢¢¢¬…¡‚¬‚¢¢¢¬…¾

‚¢s surely worth asking, isn†™‚¢‚¢¢¢¬…¡‚¬‚¢¢¢¬…¾

‚¢t it?

Were the police just †™‚¢‚¢¢¢¬…¡‚¬¢‚¬¦¢¢¬…œrel

axing†™‚¢‚¢¢¢¬…¡‚¬? while off-duty? If that†™‚¢‚¢¢¢¬…¡‚¬‚¢¢¢¬…¾

‚¢s the case, I†™‚¢‚¢¢¢¬…¡‚¬‚¢¢¢¬…¾

‚¢ve no problem with their †™‚¢‚¢¢¢¬…¡‚¬¢‚¬¦¢¢¬…œrel

axing†™‚¢‚¢¢¢¬…¡‚¬? part of the evening. It's what happened in the parking lot that should concern us.

But if the police, or at least some of them, were on-duty, than many questions must be asked and should be quickly answered.

What were on-duty Durham City Police officers doing in a sports bar near midnight in another city and county?

Except in †™‚¢‚¢¢¢¬…¡‚¬¢‚¬¦¢¢¬…œhot

pursuit†™‚¢‚¢¢¢¬…¡‚¬? situations, it†™‚¢‚¢¢¢¬…¡‚¬‚¢¢¢¬…¾

‚¢s very unusual for members of a city police force from one county to operate in the jurisdiction of another city police force in another county.

When it does happen for legitimate reasons, there is always an extensive paper trail.

Higher ups in the department sign off on the activity. It†™‚¢‚¢¢¢¬…¡‚¬‚¢¢¢¬…¾

‚¢s documented that the officer(s) will be out of the jurisdiction which employs them and assumes liability for what they do in the line of duty.

†™‚¢‚¢¢¢¬…¡‚¬¢‚¬¦¢¢¬…œWhe

n,†™‚¢‚¢¢¢¬…¡‚¬? †™‚¢‚¢¢¢¬…¡‚¬¢‚¬¦¢¢¬…œwhy

†™‚¢‚¢¢¢¬…¡‚¬? and †™‚¢‚¢¢¢¬…¡‚¬¢‚¬¦¢¢¬…œund

er what circumstances†™‚¢‚¢¢¢¬…¡‚¬? documents are drawn and signed in multiple copies. If city owned vehicles are used, special authorization documents are signed, etc.

These and many other questions need follow up and prompt answers.

Why aren't news organizations asking them?

By John in Carolina

In the ass...