ADN

Meagerly Articulated Agendas


In American history, other examples exist of prosecutorial misconduct¢‚¬though Mike Nifong is rapidly earning himself a position among the worst of such cases. Other examples exist of women filing false claims of rape¢‚¬though few, it would seem, possess as many credibility problems as this accuser and the story that she ultimately told. Other examples exist of the media getting a story badly wrong and refusing to reconsider¢‚¬though few parallel the behavior of the New York Times or the Herald-Sun over the past eight months.

But at least one aspect of this case appears to be unique. I know of no other criminal case in which the statements and behavior of the students¢‚¬„¢ own professors constituted grounds for a change of venue. The recent defense motion (pages 16-18) details the actions of the Duke faculty members whose irresponsible conduct has shamed the profession: Houston Baker, William Chafe, Wahneema Lubiano, Grant Farred, Peter Wood, Joseph DiBona, Karla Holloway, others in the Group of 88. These professors give new meaning to the promise that at Duke, ¢‚¬Å“teaching is personal,¢‚¬ with faculty members ¢‚¬Å“committed to giving students the individual attention that nurtures ideas and pushes them to excel.¢‚¬

The change-of-venue motion¢‚¬„¢s faculty section, unsurprisingly, revolves around the Group of 88¢‚¬„¢s statement. Several weeks ago, Holloway complained that the Group¢‚¬„¢s critics had ¢‚¬Å“displaced the actual content of the ad for the fiction of their own meagerly articulated agendas.¢‚¬ In fact, most critics have focused on the ¢‚¬Å“actual content¢‚¬ of the ad, which several weeks ago vanished from the Duke website. Specifically, the signatories:

asserted that something ¢‚¬Å“happened¢‚¬ to the accuser;
said ¢‚¬Å“thank you for not waiting and for making yourselves heard¢‚¬ to protesters who had branded the lacrosse players rapists;
promised that their agenda ¢‚¬Å“won¢‚¬„¢t end with what the police say or the court decides,¢‚¬ coupled with their commitment to ¢‚¬Å“turning up the volume¢‚¬;
lashed out at the lacrosse players for triggering a ¢‚¬Å“social disaster.¢‚¬
Group members, on the other hand, have offered a variety of interpretations of the statement¢‚¬„¢s meaning, several of which are unsupported by the document¢‚¬„¢s ¢‚¬Å“actual content.¢‚¬

Alex Rosenberg. In an October interview with the New York Sun, the R. Taylor Cole professor of philosophy stated that he signed the statement to express his opposition to ¢‚¬Å“affluent kids violating the law to get exploited women to take their clothes off when they could get as much hookup as they wanted from rich and attractive Duke coeds.¢‚¬ A few weeks later, he offered a different rationale, contending that, with his signature, he was ¢‚¬Å“complaining about the culture of drunken loutishness on campus.¢‚¬

The ¢‚¬Å“actual content¢‚¬: The ad does not contain the words ¢‚¬Å“alcohol,¢‚¬ ¢‚¬Å“drinking,¢‚¬ ¢‚¬Å“beer,¢‚¬ or any other word suggesting that its signatories were expressing an opinion one way or the other about such issues. Regarding Rosenberg¢‚¬„¢s first rationale: nothing in the ad suggests a tolerant attitude toward getting ¢‚¬Å“hookup . . . from rich and attractive Duke coeds.¢‚¬ Indeed, I suspect that Rosenberg¢‚¬„¢s novel justification for the ad was shared by fellow Group of 88 member Robyn Wiegman, head of the Duke women¢‚¬„¢s studies program.

Sherman James. In a November interview with the Chronicle, James asserted, ¢‚¬Å“I stand by my right to express my opinion, other than that I don¢‚¬„¢t have anything to say. I think everyone should have the opportunity to express an opinion.¢‚¬

The ¢‚¬Å“actual content¢‚¬: The ad contains no references to the First Amendment, academic freedom, or even freedom of speech in the abstract. Some, moreover, might consider it unusual to strike a blow for civil liberties by signing a statement that implicitly aided Mike Nifong¢‚¬„¢s prosecutorial misconduct.

Alice Kaplan. ¢‚¬Å“I signed the statement,¢‚¬ she asserted, ¢‚¬Å“because I care about Duke and I care about the students and the experiences they¢‚¬„¢re having.¢‚¬

The ¢‚¬Å“actual content¢‚¬: The ad does reference alleged (anonymous) student experiences. But Kaplan¢‚¬„¢s rationalization strains credulity. As her colleague, Michael Gustafson, pointed out, ¢‚¬Å“I would agree with Professor Kaplan¢‚¬„¢s assertion that the faculty members who signed that petition cared about what all their students were going through if, parallel to the ad that ran this spring, there had been a new one that came out this summer or fall capturing the outrage over the due process denied our students. I would have a better time accepting her statement if any one of the people who signed that document had spoken out against the death threats hurled at our students, against calls for our students to be ¢‚¬Ëœ...prosecuted whether it happened or not. It would be justice for things that happened in the past¢‚¬„¢ as reported in Newsweek. But instead - there was silence - the same kind the faculty that supported that ad railed against. This is still a social disaster, but the inability to see it in its fullness has left us even more polarized than before.¢‚¬

Maurice Wallace: ¢‚¬Å“The fact is,¢‚¬ he wrote one correspondent, the ad ¢‚¬Å“does not criticize the lacrosse players(!).¢‚¬ [emphasis added] Instead, the statement ¢‚¬Å“is a record of sentiments shared by no less than two or three generations of Duke's invisible classes.¢‚¬ For good measure, he noted, ¢‚¬Å“I have not reconsidered signing the ad. I plan no public statements on behalf the accused students. They have secured well-paid lawyers to do that.¢‚¬

The ¢‚¬Å“actual content¢‚¬: It would appear that Professor Wallace did not read the advertisement before signing it.

William Chafe: In a Chronicle op-ed published a few days before the ad appeared, Chafe argued that the lacrosse players¢‚¬„¢ actions needed to be interpreted through such history as ¢‚¬Å“Emmett Till was brutalized and lynched in Mississippi in 1954¢‚¬ and ¢‚¬Å“sex and race have always interacted in a vicious chemistry of power, privilege, and control.¢‚¬

The ¢‚¬Å“actual content¢‚¬: It¢‚¬„¢s hard to see much concern with the fate of Emmett Till¢‚¬or with race or racism in general¢‚¬in the faces or slogans of protesters like these, whose conduct the ad publicly thanked. After criticizing the players on several occasions in the spring, Chafe abruptly changed course in May. He asserted that ¢‚¬Å“whether or not a sexual assault took place is something we will not know for months and is a task for the criminal-justice system to establish,¢‚¬ and therefore he would no longer comment on the issue, or on questions of due process for Duke students.

Wahneema Lubiano: ¢‚¬Å“Members of the team,¢‚¬ she wrote in a blog posting explaining the ad¢‚¬„¢s purpose, ¢‚¬Å“are almost perfect offenders in the sense that [critical race theorist Kimberle] Crenshaw writes about,¢‚¬ since they are ¢‚¬Å“the exemplars of the upper end of the class hierarchy, the politically dominant race and ethnicity, the dominant gender, the dominant sexuality, and the dominant social group on campus.¢‚¬ ESPN reported that Lubiano ¢‚¬Å“knew some would see the ad as a stake through the collective heart of the lacrosse team.¢‚¬

The ¢‚¬Å“actual content¢‚¬: Lubiano authored the ad. Presumably its wording reflected her beliefs.

Many other Group of 88 members refused requests from both the Chronicle and from me to provide an explanation of why they signed the statement and what they thought the statement meant.

In short, 88 faculty members¢‚¬people who are paid to say what they mean and mean what they say¢‚¬produced a statement so inflammatory in content and effect that it contributed to the need for a change in venue. And yet these same professors were so cavalier about their act that they cannot even collectively come up with an interpretation of the statement¢‚¬„¢s meaning that corresponds to the text.


Some say it was about drinking; to others, it addressed the problems of the past. Some say it mobilized sentiment against the ¢‚¬Å“perfect offenders¢‚¬; for others, it had nothing to do with the lacrosse players. Some cite Emmett Till as a reference point; others turned to what current-day alleged Duke students thought about events. And Holloway contends that critics have ¢‚¬Å“displaced the actual content of the ad for the fiction of their own meagerly articulated agendas¢‚¬?
In the end, what matters is the text. And the text rationalized a rush-to-judgment attitude that is worthy of the strongest condemnation.

Shaky case

Questions about evidence and the investigation's handling lead to doubts about rape charges against former Duke lacrosse players

There's no question that members of last year's Duke University lacrosse team showed poor judgment in staging a rowdy spring break party that featured two dancers hired from escort services. But serious doubts continue to grow about the case that Durham District Attorney Mike Nifong has brought against three of the players who are accused of raping and assaulting one of the dancers.
Reports in The N&O concerning contradictory accounts by the alleged victim and flaws in how the case has been investigated have raised questions about Nifong's decision to press ahead with the prosecution. The latest such report cited court testimony Friday by Brian Meehan, director of a Burlington laboratory, to the effect that Nifong knew that DNA tests on evidence gathered from the accuser's body and underwear failed to implicate any of the Duke athletes.

Meehan said under Nifong's questioning that no one had asked him to conceal the lack of evidence from the players when other findings were released from the DNA testing that was performed last spring.

Yet Meehan didn't have to be asked to conceal anything if he and Nifong already had agreed that only certain information would be released, as Meehan claimed that they had. It was only in September, in response to requests by the defendants' lawyers, that the full report from Meehan's firm was made available to the lawyers.

Under state law, prosecutors are required to turn over to defense attorneys evidence favorable to the accused, who in this case are former Duke lacrosse players David Evans of Maryland, Colin Finnerty of New York and Reade Seligmann of New Jersey.

Biological evidence from the woman who says she was raped was retrieved within hours of the alleged assault at the team party. Nifong then obtained DNA samples from team members, asserting that the evidence would be pivotal. He went on to obtain indictments of Finnerty and Seligmann on charges of rape, kidnapping and sexual assault, even though state tests of those samples showed no connection between the defendants and the accuser.

In view of that, it's not unreasonable to wonder if Nifong arranged for the more sensitive tests offered by Meehan's lab in an attempt to bolster his prosecution. The results clearly didn't help, yet he went on to gain the indictment of Evans and otherwise has plowed ahead.

Meehan maintained in court that the test results showing no DNA from any of the defendants were withheld out of some concern for their privacy. Nifong also said they were "trying to avoid dragging any names through the mud." but certainly the trio's greater interest has been in having their names cleared.

Meanwhile, notes from Durham investigators show that the woman changed her story repeatedly during interviews with detectives. And detectives violated the department's own photo line-up policy when they had the woman identify the three players. What is the basis for Nifong's sustained belief that sexual crimes were committed by the three?

Nifong has enjoyed the benefit of the doubt from many members of the public over this case. But the more information that comes to light, the more questionable his conduct and judgment appear.

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


¢‚¬Å“DNA results,¢‚¬ said Mike Nifong on April 11, ¢‚¬Å“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 ¢‚¬Å“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 ¢‚¬Å“embarrassing¢‚¬ contradictions in her story were discovered, Nifong dropped the charges. The accuser never ¢‚¬Å“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 ¢‚¬Å“community,¢‚¬ police charged a black homeless man, Leroy Summers, 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, ¢‚¬Å“we¢‚¬„¢re still in the process of collecting probable cause.¢‚¬ Summers 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 Summers 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 Summers¢‚¬„¢ 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: ¢‚¬Å“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 ¢‚¬Å“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 Summers case and the lacrosse case. Writing in the July 11, 2000 Herald-Sun, John Stevenson penned an article on the Summers dismissal framed wholly around the unreliability of eyewitness IDs vis- -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.

¢‚¬Å“I have no reason to think this woman would lie,¢‚¬ Loflin added. ¢‚¬Å“I think she was just outright mistaken.¢‚¬

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

¢‚¬Å“Only a tiny fraction of eyewitnesses get it correct,¢‚¬ Loflin said. ¢‚¬Å“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.

¢‚¬Å“You have juries believing victims and other eyewitnesses who are notoriously unreliable,¢‚¬ he said. ¢‚¬Å“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 ¢‚¬Å“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 Summers case, Nifong once believed that when ¢‚¬Å“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 Summers, 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.

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; (/cool.gif" style="vertical-align:middle" emoid="B)" border="0" alt="cool.gif" /> to promote athletics; or ‚© 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 ¢‚¬Å“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 ¢‚¬Å“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 ¢‚¬Å“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 ¢‚¬Å“attackers.¢‚¬ The silence of pro-¢‚¬Å“victim¢‚¬ groups, such as the North Carolina NAACP, on this question suggests that whatever is motivating them, it is not ensuring ¢‚¬Å“justice¢‚¬ for the ¢‚¬Å“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 ¢‚¬Å“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 ¢‚¬Å“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 ¢‚¬Å“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 ¢‚¬Å“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 ¢‚¬Å“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 ¢‚¬Å“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 ¢‚¬Å“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 ¢‚¬ËœSchedule¢‚¬„¢ 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 ¢‚¬Å“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.

Duke Prosecutors Drop Rape Charges

Prosecutors dropped rape charges Friday against three Duke University lacrosse players accused of attacking an exotic dancer at a team party, but the three still face kidnapping and sexual offense charges.

According to court papers filed Friday by district attorney Mike Nifong, the accuser told a prosecution investigator on Thursday that she now does not know if she was penetrated during the alleged attack.

Lacking any "scientific or other evidence independent of the victim's testimony" to corroborate that aspect of the case, Nifong wrote, "the State is unable to meet its burden of proof with respect to this offense."

Nifong did not immediately return calls seeking comment, and a sign posted on his office door read, "No media, please!"

The DA's office confirmed to ESPN's George Smith that the accuser is aware the charge is being dropped.

The accuser, a 28-year-old student at North Carolina Central University, has said three men raped her in a bathroom at a March 13 Duke lacrosse team party where she was hired to perform as an exotic dancer.

The indicted players -- Dave Evans, Collin Finnerty and Reade Seligmann -- all say they are innocent, and their attorneys have consistently said no sex occurred at the party.

The defense attorneys have repeatedly cited a lack of DNA evidence in the case as proof of their clients' innocence, while Nifong had said he didn't need DNA evidence to win convictions.

"It's highly coincidental," said defense attorney Joseph Cheshire, that the charges are being dropped a week after the director of a private DNA testing lab acknowledged that he initially, with Nifong's knowledge, withheld from the defense test results showing none of the players' DNA was found on or in the accuser's body.

Testing also showed that genetic material from several males was found on her undergarments and body.

"The reality is, what else could the DA do?" said Stan Goldman, who teaches criminal law, evidence and criminal procedure at Loyola Law School in Los Angeles. "Once the DNA evidence came out last week, I can't imagine how they could sustain a rape charge."

That the accuser had again changed her story hurts Nifong's case on the other charges as well, Goldman said.

"It strikes me that a case based on this particular complaining witness' credibility appears to be in jeopardy," he said.

Defense attorneys have said for months that the woman has told several different versions of the alleged assault, and Seligmann's attorney has said she has given investigators at least a dozen different versions of the alleged attack.

The defense has also argued that the woman misidentified her alleged attackers in a photo lineup and they have asked the judge to prevent the accuser from identifying the players from the witness stand.

Source: http://sports.espn.go.com/ncaa/news/story?id=2706267

They should press charges against her ass..

Yup...I totally agree man. Mental trauma or something. Gotta get her wishing she had never done this

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.




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 ¢‚¬Å“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? ¢‚¬Å“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, ¢‚¬Å“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 ¢‚¬Å“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 ¢‚¬Å“North Carolina, America¢‚¬„¢s very own banana republic¢‚¬? Alberto Gonzales. When the AG ¢‚¬Å“becomes the key to protecting basic civil liberties in what should be a routine criminal prosecution by local officials,¢‚¬ Taylor concludes, the ¢‚¬Å“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 ¢‚¬Å“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 ¢‚¬Å“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 ¢‚¬Å“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 ¢‚¬Å“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.

Nifong Confesses to the NYT



In a three hour interview with the New York Times on Thursday, Durham County District Attorney Mike Nifong admitted that he was aware of the results of DNA testing prior to seeking indictments in the Hoax. DA Nifong also admitted that he knew the results to be both relevant and exculpatory.
"On Thursday, Mr. Nifong acknowledged knowing about those test results before any players were indicted last spring. He also acknowledged that the results were relevant and ¢‚¬Å“potentially exculpatory,¢‚¬ and he said he should have given the results to the defense before May 18, the day he signed a filing that said ¢‚¬Å“the state is not aware of any additional material or information which may be exculpatory in nature.¢‚¬

District Attorney Nifong¢‚¬„¢s confession confirms the testimony given in court by Dr. Brain Meehan last Friday.
"Did Nifong and his investigators know the results of all the DNA tests?" Cooney asked.

¢‚¬Å“I believe so,¢‚¬ Meehan said.

¢‚¬Å“Did they know the test results excluded Reade Seligmann?¢‚¬ Cooney asked
"I believe so,¢‚¬ Meehan said. LS
While DA Nifong admits to his failure to comply with his legal discovery obligations, he excuses his illegal conduct as the product of an accidental oversight.
¢‚¬Å“But Mr. Nifong denied the defense team¢‚¬„¢s contention that he had deliberately tried to hide the results or delay their release. Mr. Nifong, who is personally overseeing this case, said that given the volume of evidence he had not realized that he had failed to turn over those specific DNA test results. ¢‚¬Å“That wasn¢‚¬„¢t something I was concentrating on,¢‚¬ he said.¢‚¬

Nifong¢‚¬„¢s transparent rationalization is belied by the continued testimony of Dr. Meehan.
"Was the failure to report these results the intentional decision of you and the district attorney?" Cooney asked.
¢‚¬Å“Yes,¢‚¬ Meehan replied." LS
Making Nifong¢‚¬„¢s anemic excuse more troubling, and highly questionable are his own actions to withhold the exonerating evidence from the defense. In court, DA Nifong mischaracterized his meetings with Dr. Meehan by specifically stating that those meeting did not include discussion of the evidence produced by Dr. Meehan¢‚¬„¢s testing. His false contention that the substance of those meetings were protected as work product, were readily accepted by a trusting Judge Ronald Stephens.
Conspiring with Dr. Meehan to exclude the exonerating results of the DNA testing from the reports, and denying that the meeting were evidentiary, were not DA Nifong¢‚¬„¢s only attempts to delay or withhold evidence. In September, DA Nifong offered a written objection, from Dr. Meehan to the court, in an effort to avoid compliance with the discovery statutes. In addition to presenting Meehan¢‚¬„¢s objection, Nifong also mocked the defense for wanting the information that he admits now they had rights to having several months prior.
The timing of this three hour interview with the New York Times appears to make clear that the spin which has followed the dismissal of the rape charges, and perhaps the dismissal itself, was a coordinated effort to undue the damage done by the latest indications of misconduct on the part of the District Attorney. As Nifong chatted with Duff Wilson, the recently promoted Linwood Wilson interviewed the accuser.
¢‚¬Å“As it happened, as Mr. Nifong made those remarks on Thursday afternoon, the woman was expressing new doubts to his investigator, doubts that forced him to drop the rape charges late Friday morning.¢‚¬

Despite Nifong¢‚¬„¢s confession to knowing of the exonerating evidence prior to seeking indictments in April, Wilson allows Nifong to mischaracterize the DNA evidence as ¢‚¬Å“new.¢‚¬
¢‚¬Å“He also accused defense lawyers of using the new DNA test results as part of a campaign of ¢‚¬Å“character assassination¢‚¬ against the accuser.¢‚¬

The only thing new about the DNA test results is that the world now knows of them and the State Bar and Department of Justice now know that DA Nifong colluded with the lab to hide the results while he abused his prosecutorial discretion in bring charges against men proven to be innocent by those tests.
The magnitude of deception revealed by Nifong¢‚¬„¢s confession to the Times and Dr. Meehan¢‚¬„¢s admissions in court becomes crystal clear when the District Attorney¢‚¬„¢s, and Police Investigators¢‚¬„¢, knowledge of this definitive evidence of innocence is put into context of their subsequent words and actions. From an investigative standpoint, these test results, presented on April 10 to Nifong, Inv. Himan, and Sgt Gottlieb, offered concrete evidence of the innocence of each of the four players identified by the pseudo-victim as her three imagined assailants during the contrived lineup session of April 4, 2006. Addressing the press yesterday, defense attorney Joe Cheshire makes this point abundantly clear:
"Last week, it was clearly demonstrated that significant exculpatory evidence had been purposefully withheld from the defense in this particular case. It should not be lost on you all, who have covered this case, that significant exculpatory evidence proved that there was no sexual contact between these young men and this woman.¢‚¬

With the knowledge that eighteen separate DNA samples recovered from the accuser¢‚¬„¢s nether regions within a few hours of the imagined non-event matched at least five other men but none of the forty-six suspects, Nifong, Himan, and Gottlieb proceeded willfully to frame innocent young men for a crime they did not commit. Consider some of the actions by these men in the days that immediately followed the revelation by Dr. Meehan.
Nifong, Himan, and Gottlieb met with the false accuser on April 11, 2006 to, if you chose to believe Nifong, inform her on how the case framing the innocent men would proceed.
Nifong, on April 11, 2006, stumped at a North Carolina Central University forum by laying out the ¢‚¬Å“evidence¢‚¬ against the framed young men and assuring the community that he was certain a rape had occurred and that he would continue to seek ¢‚¬Å“justice.¢‚¬
"I assure you by my presence here that this case is not over."

¢‚¬Å“We're still waiting for the results of DNA tests.¢‚¬

¢‚¬Å“In 75 percent to 80 percent of sexual assaults, there is no DNA evidence to analyze.¢‚¬

"It doesn't mean nothing happened. It just means nothing was left behind."

Following the NCCU forum, Maj. Ron Hodge, the assistant chief of the Durham Police Department would add to Nifong¢‚¬„¢s message, "I don't think we would be here if it wasn't (a strong case)."
In an interview with the Charlotte Observer that ran on April 11, Nifong explained away the reported lack of DNA by stating, "I would not be surprised if condoms were used. Probably an exotic dancer would not be your first choice for unprotected sex."
On April 12, 2006, Nifong prepared the indictments, that Himan and Gottlieb would present to the Grand Jury a week later, and motions to seal the indictments he confidently expected to be returned from the Grand Jury as a true bill a week later. Sealing the indictments ensured the campaign serving perp walk photo opportunity rather than allowing the framed young men to surrender as they were willing to do.
On April 13, 2006, investigators working under the direction of chief investigator Nifong entered Edens dorm without a warrant and attempted to interview players without their attorney¢‚¬„¢s present after first perpetrating an email ruse, using a lacrosse players Duke University email account. The ruse appears designed to frighten a false confession or at least create panic as it suggested that the player whose account was used would come forward with false information.
On April 13, 2006, Nifong, with ominous foreshadowing, abruptly cut off Wade Smith and other defense attorneys when they attempted to show him additional exculpatory evidence. In refusing to view the evidence, Nifong told the attorneys that he knew more about the case than they would ever know and that he intended to indict two players.
On April 13, 2006, Nifong refused to meet with Reade Seligmann¢‚¬„¢s attorney, Kirk Osborn, who also wanted to share exculpatory evidence with Nifong. Dismissing Osborn by proxy, Nifong sent a messenger to say, ¢‚¬Å“I saw you on the TV saying your client was absolutely innocent, so what do we have to talk about?¢‚¬
Dr. Meehan, on April 14, 2006, asked for and was provided with a limited selection (24 pages) of the underlying data produced by the SBI during its regular autosomal DNA testing. Despite finding proof of actual innocence, Meehan continued with the quest to build a case against the innocent men.
On April 17,2006, co-conspirators Himan and Gottlieb testified before the Grand Jury. That a true bill was given the indictments reveals that they testified not to the innocence demonstrated to them by Dr. Meehan¢‚¬„¢s finding but rather to a false case showing the possibility of guilt.
Inv. Himan signed two sworn affidavits on April 18, 2006 that stated his belief in the guilt of Collin Finnerty and Reade Seligmann. These affidavits were used to establish probable cause for search warrants in an attempt to obtain additional evidence to help frame the young men he knew to be innocent.
Nifong¢‚¬„¢s attempt to spin his misconduct, via Duff Wilson, into a simple oversight of ¢‚¬Å“something I was [not] concentrating on¢‚¬ appears to fail the smell test horribly. While it is clear that he did then, and continues to now, ignore the evidentiary value of the DNA tests, it appears that considerable effort was put into avoiding disclosure of that evidence. Not only was considerable effort put into not disclosing the evidence, but also the investigation and prosecution proceeded as if it did not exist.

Consider as well the efforts that were put into spinning the public perception of the value of the DNA testing.

"How does DNA exonerate you? It's either a match or there's not a match¢‚¬¦If the only thing that we ever have in this case is DNA, then we wouldn't have a case."

"The absence of DNA doesn't prove anything."

"DNA results can often be helpful, but, you know, I've been doing this for a long time, and for 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."

"It doesn't mean nothing happened. It just means nothing was left behind."

"I would not be surprised if condoms were used. Probably an exotic dancer would not be your first choice for unprotected sex."

"To say, well, you know, her profession was not really the most honorable in the world, we really don't have the strongest case in the world because there's no DNA, so let's forget about it. Well, ladies and gentlemen, that's not doing your job."

Considering, in total, the extreme efforts by DA Nifong to spin the DNA test results, to hide the complete results, and now to lessen the implications of the revelation of his misconduct, it would appear that the exonerating evidence is, in fact, something that he was concentrating on. Concentrating on hiding, hiding from, and spinning, that is.

Adding to the comedy of the NYT story, is Nifong¢‚¬„¢s assertion, by email, that he was willing to follow the evidence. Quite clearly that has not been the case but rather the opposite of nearly everything he has done in promoting his Hoax.

"Mr. Nifong declined interview requests Friday, but said in an e-mail message that his decision to dismiss the rape charges showed he was ¢‚¬Å“willing to go in whatever direction the evidence takes me.¢‚¬

Perhaps the most curious item presented in the New York Times PR piece is Nifong¢‚¬„¢s assertion that he would drop the case if the accuser was unable to identify her ¢‚¬Å“assailants.¢‚¬

¢‚¬Å“If she came in and said she could not identify her assailants, then we don¢‚¬„¢t have a case,¢‚¬ Mr. Nifong said
Considering that on two separate occasions she did indeed come in a fail to identify her ¢‚¬Å“attackers,¢‚¬ Nifong¢‚¬„¢s contention that her failure to identify would end the case is blatantly untrue. In fact, it has been demonstrated that the manufactured, made-for-video, lineup session on which the indictments were based showed a great deal of uncertainty on the part of the accuser. If identifying four people as her three attackers, inventing a mustache that never was, and ¢‚¬Å“recalling¢‚¬ people who weren¢‚¬„¢t even at the party is not a clear indication of uncertainty, nothing is.

Curiously, Nifong appears to be trying to lend material to the defense¢‚¬„¢s argument that the photo identifications should be suppressed.

¢‚¬Å“You can¢‚¬„¢t always tell from a photograph,¢‚¬ he said.
Bizarrely, Nifong asserts that the accuser¢‚¬„¢s ability, or not, to identify the accused in court on February 5 will be determine whether the case continues or dropped.

¢‚¬Å“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.¢‚¬

Mr. Nifong said he intends to ask the woman about her level of certitude after February¢‚¬„¢s hearing. ¢‚¬Å“It¢‚¬„¢s an opportunity to say, ¢‚¬ËœYes, I¢‚¬„¢m 100 percent certain these are the people who did it,¢‚¬„¢ ¢‚¬ he said. ¢‚¬Å“It¢‚¬„¢s also an opportunity to express doubt.¢‚¬ Given the absence of physical evidence, he said, any doubts from the woman could end the prosecution for one or more of the defendants.

Considering the accused¢‚¬„¢s faces have been plastered on television screens, magazines, and newspapers nearly non-stop since Nifong¢‚¬„¢s false prosecution began, it hardly seems as if an identification now, or six weeks from now, would have any merit. At this point, if Reade Seligmann showed up at my door, my dog would be able to identify him. How Nifong could suggest that identifying three men, who will obviously be the youngest people sitting at a table of attorneys, is the only way to know whether there has been a misidentification is a mystery that defies comprehension. I wonder why the NC Actual Innocence Commission left that one out of their recommendations for eyewitness identification.

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.

¢‚¬Å“You know,¢‚¬ he told the Times, ¢‚¬Å“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.

¢‚¬Å“So it¢‚¬„¢s not like this is something we discover on the fourth day of a five-day trial and say, ¢‚¬ËœOh, by the way,¢‚¬„¢ ¢‚¬ he said. ¢‚¬Å“I mean, that¢‚¬„¢s not what¢‚¬„¢s going on.¢‚¬


UNC law professor Joseph Kennedy has, correctly, ridiculed this argument. ¢‚¬Å“Prosecutors,¢‚¬ he wrote, ¢‚¬Å“do not get to play ¢‚¬ËœBattleship¢‚¬„¢ 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 ¢‚¬Å“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 ¢‚¬Å“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 ¢‚¬Å“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. ¢‚¬Å“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, ¢‚¬Å“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 ¢‚¬Å“witch hunt¢‚¬ and sarcastically finding it ¢‚¬Å“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