DA's critics ask bar, feds to intervene (New DukeLax Developments)

Mike Nifong's detractors in the Duke lacrosse case want him punished for forcefully pursuing charges

In the war that is the Duke lacrosse case, Mike Nifong's fierce fight will not end with the trial.

Durham's district attorney will face a barrage of attacks on the federal and state level from foes who are determined to have Nifong investigated, punished and disbarred for his actions in the rape case against three Duke University lacrosse players.

Dozens of people, some connected to the accused, have asked the governor and the state attorney general to intervene. Many have complained to the N.C. State Bar, the agency that licenses and disciplines lawyers. And a lawyer for one of the indicted players has urged members of Congress to have the U.S. Department of Justice open a civil rights investigation.

The request for federal intervention is aggressive and rare, said Richard Myers, a UNC-Chapel Hill law professor and former federal prosecutor.

"It's a fairly strong indication the defense has nothing to hide if they want more eyes on the ground," Myers said. "How effective it's going to be, who knows? You cast a wide net and hope someone gets interested."

The attacks are a sign of the long and vicious battle ahead in the Duke lacrosse controversy.

Three former players, Dave Evans, 23, of Bethesda, Md.; Collin Finnerty, 20, of Garden City, N.Y.; and Reade Seligmann, 20, of Essex Fells, N.J., are charged with rape, kidnapping and sexual offense. They are accused of gang-raping a woman hired though an escort service to dance at a team party in March.

Nifong has been criticized for statements he made in the week after the investigation became public, when he called the players "hooligans" and said he was certain a racially motivated rape had occurred.

After that first week, Nifong's torrent of comments slowed to a trickle. In his silence, the players and their attorneys have attacked Nifong, using his own documents and statements to accuse the veteran prosecutor of misconduct and to highlight weaknesses in the case.

Nifong declined to comment for this report. But in court, news releases and at news conferences, the prosecutor has responded to the criticisms against him, at times using language that sounds like an opening argument he might make to the State Bar in his defense.

At a July news conference, Nifong explained his early statements to the media by saying he was trying to inform the public that an investigation was in progress and to encourage cooperation from witnesses. Bar rules specifically allow prosecutors to make public statements for those reasons.

The request for a federal investigation came from Michael Cornacchia of New York, one of Finnerty's attorneys. He wrote to the U.S. attorney general, the FBI director, the congressional delegations of North Carolina and Long Island and others, saying Nifong had violated the civil rights of the three players. The case merits an immediate investigation by the U.S. Department of Justice, wrote Cornacchia, a former prosecutor who recently served as chief investigative counsel for the probe of the United Nation's oil-for-food program.

N.C. Attorney General Roy Cooper and Gov. Mike Easley received scores of letters requesting that they take over the case, something North Carolina law does not allow. These letters ranged from well-researched, artfully composed missives to profane rants from phony e-mail addresses. They came from family friends and business colleagues of the accused. Some were from outside observers. Many were sent from out of state, and a good number came from Durham.

Although State Bar complaints are confidential, at least 17 became public records when they were copied to the governor or state attorney general.

"I would think of this as misconduct by a DA and that for some reason, maybe political, he has painted a fabricated picture," wrote Edwin G. Beusse, a New York developer who works with Finnerty's father, in a letter Aug. 9. "Isn't there a check or balance for situations like this that are so far out there, that they're obviously false?"

Molly M. Maguire of Darien, Conn., wrote June 13, "It is frightening to think of any American being victimized by our own legal system and devastating to know that three promising lives are held hostage to a not-so-hidden political agenda." Maguire is a friend of the Finnerty family.

The chances of a federal investigation are unknown; a State Bar investigation is more likely. The bar complaints accuse Nifong of violating the ethics rules governing pretrial publicity and bringing disrepute to the justice system. The complaints cite specific actions by Nifong throughout the investigation as violations of State Bar rules.

Bar officials have responded in writing to the complainants, saying they take the matter seriously. State law prohibits them from saying whether an investigation is under way.

Whatever happens at the State Bar, the organization will be under pressure. The bar has been smarting from its handling of two high-profile cases involving prosecutorial misconduct over the past two years.

In 2004, David Hoke and Debra Graves were reprimanded for withholding evidence during the trial of Alan Gell, who spent nine years behind bars, half of that on death row, for a murder he did not commit. The withheld evidence included statements showing that the murder occurred while Gell was in jail on a petty charge and a tape-recording of the star witness talking about "making up a story" for police.

The State Bar came under withering criticism for its prosecution of Hoke and Graves. During its investigation, the bar interviewed only Hoke and Graves and did not talk to key witnesses such as detectives or other lawyers. The uproar prompted the bar to conduct an unprecedented public self-examination, which found deficiencies and flawed practices in the case. One of the ensuing conclusions was that the bar should consider hiring outside prosecutors in high-profile cases.

In the second case, also involving a death penalty trial, the bar's prosecutor went after Kenneth Honeycutt and Scott Brewer aggressively, charging them with lying, cheating and withholding evidence. The bar alleged that the former Union County prosecutors had committed a string of felonies, including hiding evidence from the judge and jury, altering documents and lying to the trial judge.

The State Bar's Disciplinary Hearing Commission, a separate entity that acts as judge and jury in such cases, twice dismissed the case on technicalities. The bar has appealed; a special prosecutor is investigating the criminal case against the two lawyers.

The State Bar's charter is not to punish lawyers but to protect the public. The bar has intervened on an emergency basis in some situations, said general counsel Katherine Jean. For example, the State Bar can freeze a lawyer's trust account if it thinks the lawyer has been stealing money. And the bar can suspend the license of a lawyer in prison.

Mary Ann Tally, a defense lawyer who has followed the State Bar's misconduct cases, said that if a complaint against Nifong is later pursued by the grievance committee, there could be questions about why there was not immediate action.

"If they are complaints that have to do with what is going on right now and will continue to go on until this case is resolved, I guess the question I have is why isn't the bar doing anything about it right now?" Tally said. "It seems to me there's a tremendous amount of pressure on the bar and a lot of public expectation on, 'Can you do the right thing, and can you do it in a timely fashion?' " Staff writer Joseph Neff can be reached at 829-4516 or jneff@newsobserver.com. http://www.newsobserver.com/100/story/517392.html

Defense lawyers' group returns

By John Stevenson : The Herald-Sun, Dec 3, 2006

DUIRHAM -- The Durham Criminal Defense Lawyers Association is undergoing its second revival in a little over a decade, but with a toned-down agenda.

The last time it was revived, in 1995, the association came roaring out of the chute with a blustery get-the-district-attorney attitude.

It once took pride in the fact that it could successfully badger powerful prosecutors, convincing them to schedule cases more conveniently and efficiently.

Then, more than a year ago, the association fizzled out so quietly that some attorneys weren't even aware it was gone.

Now, it's back with new goals in mind.

Instead of battling prosecutors, the association intends in its latest incarnation to mentor new lawyers and provide a networking avenue for all members of the defense bar.

Study sessions on the law, including just-implemented changes to the state's impaired-driving legislation, also will be held.

The new association's first meeting was held Thursday night, with roughly two dozen people in attendance. Attorney John Fitzpatrick was named president.

"We're not going to come from an angle of griping or an angle of fussing at the DA this time," Fitzpatrick said in an interview. "We'll come from an angle of helpfulness instead.

"I think it's very important for us to have a functioning association. We can all help each other by coming together as a think tank. It's very, very much needed. I'm excited by the zeal and enthusiasm a lot of local attorneys are displaying for this. Some thought we might get only five or 10 people at our first meeting, but we got 25 or 26. I was astonished. It was great."

Lawyer Kerry Sutton also stressed the mentoring and networking benefits of the revived association.

"There are always new attorneys coming into town," she said. "Every county has its own detailed procedures that they don't teach in law school, and that new arrivals won't be familiar with. Those of us who have been here awhile can help them.

"Lots of real accomplished attorneys sharing knowledge and networking is hardly ever a bad thing."

In addition, the association will give defense lawyers a united front when they need to speak out on issues, Sutton added.

"We'll have one voice, a stronger voice in numbers," she said.

When the Defense Lawyers Association was last revived 11 years ago, its primary purpose was to wrangle with the district attorney over scheduling procedures.

Its members contended that prosecutors enjoyed an unfair tactical advantage because they controlled the timing of trials. That allowed them to delay cases on a whim and place them before judges of their choice, defense attorneys complained.

In the early 1990s, the Durham District Attorney's Office was sued by two criminal defendants who claimed their constitutional rights were violated by such alleged tactics. The lawsuit ended with a settlement that was designed to improve matters and that led to a so-called "case-management system."

But for the most part, defense lawyers now seem satisfied with Durham prosecutors. Even if they aren't, they no longer are in the strident mode they once were.

http://www.heraldsun.com/durham/4-795761.html

* Kerry Sutton for judge. Who will be afraid to go up against the DA now?

Jury selection under way for murder trial

BY WILLIAM F. WEST : The Herald-Sun, Dec 4, 2006

DURHAM -- Jury selection began Monday in the case of a 21-year-old Durham man accused of murder who has had other brushes with the law while out on bond, including a drug arrest and being hit by gunfire in the after Chapel Hill's now-defunct Apple Chill festival.

Roy Oswald Bodden Jr. has pleaded not guilty to the Feb. 3, 2004, shooting death of Nathan Alston, and Superior Court Judge Ripley Rand told potential jurors that the prosecution is not seeking the death penalty.

The judge advised potential jurors he expects Bodden's trial to last into the middle of the month.

Assistant District Attorney Tracey Cline has described the slaying of Alston as having happened because of "a drug deal gone bad."

Alston, 24, was standing outside his apartment at 2507 S. Roxboro St. at about 12:11 a.m., Feb. 3, 2004, when someone opened fire, striking him several times in the torso. Alston was taken to Duke University Hospital, where he was pronounced dead several hours later.

Bodden, of 6324 Monterrey Creek Drive, was arrested just over a week after Alston's death. In late June 2004, police arrested a second suspect, Michael Wayne Goldston Jr., 24, 2718 Enfield Drive. The case against Goldston is pending.

Attorney James "Butch" Williams Jr. is representing Bodden in the murder case.

Earlier Monday, prior to the start of jury selection, Williams made two motions, one of them to have Cline disclose details about a recent interview she had with an unnamed source.

Cline told the court the source informed her that a third person -- not Bodden or Goldston -- who goes by a "street" nickname allegedly shot Alston.

And in the second motion, Williams asked the court to keep the jury from seeing a statement police took from Alston prior to Alston's death at the hospital.

According to Williams, Alston identified the triggerman by the first name of "Roy" and police then elicited Bodden's name from Alston.

Cline said she would not bring up that issue until after a jury is selected.

In addition, at the request of Williams, witnesses to the crime, except for the chief police investigator, are going to be kept away until they're called to testify.

Rand told the potential jurors he didn't expect they'd have to be sequestered overnight should they be chosen to serve.

The murder charge against Bodden is not the first time he has been in the news.

Bodden is one of several individuals identified at the center of a bail bond controversy in Durham.

According to reports, several murder suspects out on bond for those charges were later released from jail -- all within 24 hours -- under apparently low bail amounts. Bodden was arrested and charged with possession of 23 bags of marijuana in August and released on $10,000 bond at the time.

This past spring, Bodden, while out on bond, was one of two individuals shot on Chapel Hill's Franklin Street after the Apple Chill event.

Bodden was hit in the chest and a second bullet grazed his head while he was at "After Chill," an unofficial gathering that followed the Apple Chill street festival.

In response to the shooting, the Chapel Hill Town Council ended Apple Chill.

http://www.heraldsun.com/durham/4-796100.cfm

^ ^ ^ ^ ^ ^

Man shot to death on North Street

BY BRIANNE DOPART : The Herald-Sun, Dec 4, 2006

DURHAM -- The body of a man, apparently riddled by bullets, was found in the side lot of a local substance abuse rehabilitation facility in Old North Durham Monday.

Marlon Rand, 23, was standing outside his older-model Jaguar across the street from his 1004 North Street residence when a man approached him and opened fire, police spokeswoman Kammie Michael said Monday evening.

Rand was pronounced dead at the scene, about 100 feet from where his vehicle was parked on North Street, its left blinker still flashing.

Michael said several shots were fired at the victim, but said it was too early in the investigation to say how many.

Late Monday, officers scoured streets south of the crime scene for the killer, said by Michael to have been wearing a black hooded sweatshirt and who was seen running toward Trinity Avenue after the shooting. -cut-

http://www.heraldsun.com/durham/4-796090.cfm

^ ^ ^ ^ ^ ^

Durham suspect, 18, killed during search
Officers went to Wilmington house

Ryan Teague Beckwith and Jessica Rocha, Staff Writers, N&O, Dec 03, 2006

A teenager from Durham was killed at the house where he lived in Wilmington on Friday night as officers investigating the theft of two PlayStations arrived to search the house, authorities said.

Peyton Strickland, 18, was shot about 9:30 p.m. during a search of the Wilmington house he shared with three others.

UNC-Wilmington Police and New Hanover County Sheriff's deputies arrived at the house, 533 Long Leaf Acres Drive, with arrest warrants for Strickland and UNCW student Ryan David Mills, 20, on charges of the armed robbery of two PlayStation 3 consoles from a UNCW student on Nov. 17. Before Strickland could be taken into custody, he was shot and killed. His German shepherd, Blaze, was killed, too.
-cut-

http://www.newsobserver.com/145/story/517389.html

Hundreds Write State Officials To Remove Nifong From Duke Case

Monday, Dec 04, 2006 - 05:31 PM, NBC17

Hundreds of letters have been sent to North Carolina's Attorney General, Gov. Mike Easley and the North Carolina Bar asking them to remove Durham District Attorney Mike Nifong from the Duke Lacrosse case.

Meanwhile, an attorney for one of the players has reportedly asked the federal government to launch an investigation.

Hundreds of letters are piling up at the offices of the Governor and the Attorney General.

Other emails and letters have been sent to the North Carolina State Bar.

Many of them calling for Nifong to be taken off the Duke case, investigated, and disbarred.

Michelle Peppers writes to the Attorney General: "It is the duty of the American justice system to seek the truth, not to cover it up in order to fulfill political and personal goals. I have faith that you embrace this duty and will do everything in your power to right this wrong."

In another letter, Karen Humeniuk, writes "If, as it appears, Mr. Nifong ignored or worse stilled shunned available exculpatory evidence in this case and did not present it to the grand jury, then the state has the responsibility to intervene....."

Meanwhile, according to published reports, an attorney for Collin Finnerty, one of the three indicted lacrosse players, has written to members of congress urging them to have the U.S. Department of Justice open a civil rights investigation.

NBC17 couldn't reach Nifong for comment on Monday.

Both Gov. Easley's office and the Attorney General say they can do nothing to intervene in this case. They say state law does not give either office that authority.

http://www.nbc17.com/midatlantic/ncn/search.apx.-content-articles-NCN-2006-12-04-0006.html

* How about it CBS? Time to crack this sucker open?

From KC's blog, Tuesday Dec. 5, 2006.

Kemper said...

KC,
The boys are back from the Wake victory. Here is what I've been told will happen.
The Bar will announce, before Christmas, that 17 seperate charges have been filed
against Nifungu and a Bar trial will occur on the charges of unethical conduct some
time early next year. The trial will be judged by three Bar Counselors, Nifugu can
defend himself or hire counsel. If he is found guilty of the charges, he can appeal to
the NC Appeals Court. The charges are serious, disbarment is what I expect. They
are not messing around this time, he's toast.

7:25 PM
Kemper said...

One other note, all lawyers sell trust, Nifungu has cheapened the franchise, and
made it appear that all NC Lawyers are self serving and dishonest. That won't do.
They need to preserve the franchise, throwing Nifungu out the window to keep their
law license worth something is cheap. He's toast.

7:31 PM

https://beta.blogger.com/comment.g?blogID=32542246&postID=564641075396251324

Judge questions 911 tape

BY WILLIAM F. WEST : The Herald-Sun, Dec 5, 2006

DURHAM -- The quality of the tape of a 911 call placed after the February 2004 shooting of Durham's Nathan L. Alston was so poor when played by the prosecution Tuesday that Superior Court Judge Ripley Rand openly questioned the quality of all 911 recordings made here.

The issue came up at a hearing outside the presence of jurors who were chosen Tuesday afternoon in the case of Alston's alleged killer, Roy Oswald Bodden Jr., 21. Bodden is charged with first-degree murder in the slaying of Alston, 24 at the time of his death, in what the prosecution contends was a drug deal gone bad.

The jury is scheduled to return to court at 10 a.m. today to hear opening arguments from Assistant District Attorney Tracey Cline and defense attorney James "Butch" Williams Jr. But Rand told the prosecution he would first have to hear a cleaner version of the 911 call before making a decision about allowing the audio to be admitted as evidence.

"Quite honestly, I can't make any finding on what that [tape] said," Rand said from the bench.

The defense is trying to keep the jury from seeing a statement Durham police officer D.W. Keith obtained from Alston moments before the mortally wounded man underwent surgery at Duke Hospital. In his statement, Alston allegedly identified Bodden as the one who shot him. Alston died after being on the operating table at least three hours.

Keith testified Tuesday that Alston said the first name of the shooter was "Roy" but did not give the last name. Keith said that after he heard Roy Bodden's name included in police radio traffic as a suspect, he asked Alston whether the shooter's last name was "Bodden" and Alston said, "Yeah, Bodden."

After Keith testified, Cline called Durham police investigator Anthony Smith to the stand and played the 911 tape.

On the tape, which was a copy of the original 911 recording, Alston's mother -- since deceased -- is allegedly heard and Alston himself can allegedly be heard to say, "I've been shot five times," and later allegedly adds, "I'm going to die."

Smith, under intense questioning by defense attorney Williams, stood behind the tape's contents and said he heard Alston tell his mother he loved her in addition to the quote about dying.

Williams was quick to dispute Smith's testimony and countered, "I hadn't heard the 'dying' part the first time." Williams moved from the defense table across the courtroom to the tape player to increase the volume -- which was already loud -- before the tape was replayed.

A dispatcher can be heard asking for the identity of who committed the shooting and the location of that shooter, but got no response.

Williams argued that neither Alston's mother nor Alston himself can be heard identifying themselves while on the line with the dispatcher. He also complained about the lack of a transcript of the 911 call.

Rand said he believed he heard the statement, "I'm going to die," but asked, "Is that the best recording that's available of that tape?"

Later, he added if all 911 tapes in Durham sound like the Alston tape, "I find that difficult to believe."

Rand, a former Wake County assistant district attorney, is a resident superior court judge in Wake County Judicial District 10-B.

Prosecutor Cline said she believed background noise added to the poor quality of the recording and added that her assistant would get in touch with the 911 supervisor to come up with a solution.

On Feb. 3, 2004, Alston was standing outside his apartment at 2507 S. Roxboro St., near West Cornwallis Road, when he was shot.

Bodden, of 6324 Monterrey Creek Drive, was arrested just over a week after Alston's death.

The prosecution is not seeking the death penalty against Bodden.

A second suspect, Michael Wayne Goldston Jr., 24, of 2718 Enfield Drive, has also been indicted in Alston's slaying.

http://www.heraldsun.com/durham/4-796421.cfm

* 2507 S. Roxboro St., near West Cornwallis Road. A few blocks from Charles St.

Police charge three in connection with 1999 murder

BY BRIANNE DOPART : The Herald-Sun, Dec 5, 2006

DURHAM -- Two men were arrested and a third charged Tuesday in connection with the 1999 murder of 63-year-old Charles Johnson of Durham, police say.

Members of the Durham Police Department's Selective Enforcement Team (SET) arrested Daniel Shawn Fraley, 29, of Edith Street, and charged him with murder, police spokeswoman Kammie Michael said. Richard Leighton Steele, 26, of Virginia Avenue, was also arrested and charged with accessory before the fact of murder.

Chief Steve Chalmers said it was normal for the department to use the SET to arrest individuals like Fraley and Steele. The team is trained to serve "high-risk" warrants, he said.

Investigators are looking for a third man allegedly involved in the killing, according to Michael. Lee Brewer, 26, of State Street, is charged with murder, Michael said. At least two of the three men charged in the murder knew Johnson, she added.

Johnson, who was described by neighbors as a "nice" and "content" man, was found face-down in a pool of blood inside his 1000 Virgie St. home. Just inside the entrance of Johnson's house, officers found a potted marijuana plant and two guns. Also inside, officers discovered a large-scale marijuana growing facility.

In the years following the murder, investigators never identified a suspect but said they thought the killing was drug-related.

Johnson was known to be "involved in drugs," Chalmers said. He added he didn't know the extent to which Johnson was involved in the drug trade.

Investigators will be looking into the histories of Fraley, Steele and Brewer, Chalmers said, to see if they can be connected with any other violent crimes.

The chief said he hoped Tuesday's arrests would send a message to the families of victims in other unsolved homicides that they are not forgotten.

http://www.heraldsun.com/durham/4-796423.cfm

Dying words are an issue
Durham prosecutors want to use name that victim uttered

Benjamin Niolet, Staff Writer, N&O, Dec 06, 2006

DURHAM - As the life gushed from Nathan Alston's body in the emergency room, a police officer asked who had shot him.

"Roy," Alston said, according to the officer.

Authorities think that Alston's response, made just before he went into surgery that he did not survive, helps prove that Roy Oswald Bodden, 21, was one of the killers in what a prosecutor described as a shooting over a drug deal. But before a jury will hear Alston's words, the prosecution must convince a judge that Alston knew he was about to die.

Bodden is on trial for murder this week in Durham County Superior Court in the February 2004 shooting death. Lawyers have picked a jury, and opening statements are expected today.

Assistant District Attorney Tracey Cline wants to tell jurors that Alston named one of his assailants as he lay dying. North Carolina law would allow the police officer to tell the jury about the hospital statement if Alston thought that he was about to die. The idea is that a person facing death is less likely to make telling a lie his last act on Earth.

Bodden's attorney, James "Butch" Williams, has not yet argued why Alston's hospital statement should be kept from the jury, but he took issue with a 911 tape that Cline and a detective said shows that Alston thought he was dying. Cline said that on the tape, Alston can be heard saying he was going to die from his five gunshot wounds. But the tape is poor quality, and it was unclear to Williams and Superior Court Judge Ripley Rand of Wake County what was said.

Also, Alston did not give Bodden's last name until the police officer suggested it. And as medical workers in the emergency room tried to save Alston's life, he was conscious and able to answer questions.

Authorities also have charged Michael Wayne Goldston in the shooting. Both Goldston and Bodden have become targets for proponents of bail reform in Durham County.

They have been repeatedly arrested and sent back to jail.

Bodden, of 907 Burch Ave., is also one of two young men who were shot on Franklin Street in Chapel Hill in May after the now-defunct Apple Chill street festival.

But exactly who shot Alston will be at issue during the trial. Goldston's attorney earlier told Cline that a third man known as "G-Unit" did the shooting.

http://www.newsobserver.com/145/story/518163.html

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