Nifong to give up more documents to defense (DukeLax)

DURHAM -- District Attorney Mike Nifong today will give defense lawyers about 2,000 additional pages of information about the Duke University lacrosse rape case -- the largest single batch of documentation he has surrendered so far.

Nifong turned over some 1,800 pages of information in one previous court hearing and another 615 pages last month.

After they receive today's batch, defense attorneys will have roughly 4,500 pages of documentation about the case that has polarized Durham, brought intense national publicity to the community and sparked a movement to oust Nifong as chief prosecutor.

In addition to paperwork, defense lawyers will receive 3 DVDs from Nifong today. Among other things, they reportedly contain e-mails generated by Duke students and lacrosse players.

The information will be surrendered in a hearing before Judge Osmond Smith, who was specially assigned by the N.C. Supreme Court to shepherd the controversial lacrosse case to completion.

Three suspects in the case, Collin Finnerty, Reade Seligmann and David Evans, are not required to be present today. They are free under $100,000 bonds as they await a trial that is expected to occur next year.

The three are accused of raping and sodomizing an exotic dancer during an off-campus lacrosse party at 610 N. Buchanan Blvd. in mid-March.

Other than the surrender of information by Nifong, no major developments are expected during today's hearing.

"I don't think anyone knows exactly what will happen, but I don't believe there will be much to it," said one lawyer, asking not to be identified.

Critical defense motions in the case have yet to be heard, but they will not be argued today.

Among other things, those motions accuse police of misleading a judge to obtain a search warrant, and of devising an unconstitutional photo lineup -- a lineup that allegedly was too suggestive because it included only pictures of Duke lacrosse players.

Several national television pundits, along with a host of Internet chatters, have blasted Nifong for allegedly rushing to judgment in the case and getting the three suspects indicted on insufficient evidence.

In addition, the lacrosse incident is responsible for an anti-Nifong movement in the Nov. 7 election.

Voters are being urged to cast their ballots for County Commissioner Lewis Cheek as part of an effort to recall Nifong.

However, Cheek has said he would not serve as district attorney if elected, meaning the governor would have to choose a replacement for him.

Another anti-Nifong faction is led by local Republican Party Chairman Steve Monks, who is running for the chief prosecutor's seat on an unaffiliated write-in basis.

Monks said in an interview this week that a combined oust-Nifong effort would be better than two fragmented ones.

"It is probable that one of us has to withdraw," he said. "It has to happen. Someone has to be the frontrunner for the anti-Nifong movement. Otherwise, Mike will continue to be DA?. I can't scream from the highest mountain loudly enough that we need a combined effort."

And Charlotte Woods, a campaign leader for Monks, said she had told Cheek "a multiplicity of times" that Monks would withdraw from the race if Cheek agreed to serve as district attorney if elected.

"We have made it plain over and over again," she said. "We've told him and told him."

He said he made it clear earlier that responsibilities to partners and employees prevented him from leaving his private law firm

Meanwhile, Nifong said Thursday that he continued to stand by the rape case, and he denied he was responsible for polarizing the community.

"This particular case has not divided the community," he said. "It has pointed to divisions that already existed. It is a signal to us that we need to address these underlying divisions."

Nifong would not be specific, but he apparently referred to town-gown issues and racial issues, among others.

"Another prosecutor might make the case go away, but he can't make the underlying issues go away," said Nifong.

The district attorney, who has been a prosecutor in Durham for 27 years and head of his office since April 2005, said he wasn't withering under a storm of adverse criticism about the lacrosse incident.

"It's the difference between character and reputation," he said. "Character is what you are. Reputation is what people say you are. As long as you know who you are, you don't have to worry over what people say about you. ?

"I might be better off if I wasn't DA," Nifong acknowledged. "It certainly would be less stressful. But this is a path I have chosen to take in my life. I'm seeing some of the not-so-fun part of the job right now, but you can't take a job and just do it when it's easy and fun. URL for this article: http://www.heraldsun.com/durham/4-782289.html

In jail, they crave the wave
Loved ones happy to encourage the incarcerated

Matt Dees, Staff Writer, N&O, Published: Oct 28, 2006 12:30 AM

Orange-clad prisoners clustered together and banged on the narrow windows, getting the attention of Jennifer Humphries who stood below.

Humphries, 29, had just been released from jail and was waiting for a ride in the cold October evening.

She waved at the men, one of whom held two signs showing his release date, "11" and "21."

"Look how happy those people are that I just waved at them," Humphries said.

"Some people just want outside contact from someone, anyone, who's not an inmate."

It's a common sight outside the Durham County jail downtown -- prisoners beating on windows and holding signs, people below responding in kind, often boisterously.

Family members of prisoners can be seen at all hours of the day, jumping and waving, even cheering, for their incarcerated loved ones.

Humphries and others said if the scene seems a little upbeat for jail, it's only because the people below are trying to encourage the people in the guarded tower.

"It could be they want somebody to encourage 'em," said Col. George Naylor of the Durham County Sheriff's Office, who's run the jail for decades.

He can remember prisoners in the 1970s hanging their heads out the bars of their cells above the old courthouse, hooting and hollering at anyone passing by.

Naylor said the scene's different now since the free-standing jail was built downtown.

Thick concrete and glass forces people to communicate mostly through gestures.

He said prison officials have tried to discourage prisoners from putting signs in the windows, but he said it's difficult to enforce.

Some of the signs at the Durham jail make references to the Blood and Crips gangs.

Humphries said some flash gang signs and try to pass information to non-jailed gang members below.

Naylor said jailers have confiscated signs, only to see them go right back up.

"If it's a young'un down there waving at a daddy, that's one thing," Naylor said.

"But if it's communicating something else, that might be a problem. I don't know what they're doing or saying."

Then there are the rumors that some people, ahem, are flashing more than gang signs to the prisoners above.

Derrick Lee, 21, who also had been recently released, just laughed when asked if he ever saw someone show some skin.

"I've heard people flash they money," he said while gesturing at some of the friends he made while in the jail.

Naylor said he's never witnessed any nudity.

"Our society being what it is, I guess it wouldn't surprise me," he said.

Charlene Douglas, 38, said the vast majority of visitors mean well and show support without being obscene.

She wanted to give one last wave-and-honk as she drove away in her car on Tuesday night.

She was there to visit a relative, though she didn't want to say who.

"I think it really helps them out to know someone loves them and cares about them," Douglas said of the waves and gestures.

"And it's very therapeutic for the other end, too, to know they're OK. It's very hard when you have a loved one locked up."

http://www.thedurhamnews.com/101/story/7187.html

* Nifong's people.

The DA race of the century has its finish line in sight

By John Stevenson : The Herald-Sun, Oct 28, 2006 : 10:01 pm ET

DURHAM -- In a city rife with opinions on the Duke lacrosse case, one fact seems to stand beyond dispute:

The controversial, nationally publicized rape investigation has sparked a Durham district attorney campaign like no other in memory.

At center stage is Democrat Mike Nifong, a local prosecutor for 27 years and district attorney since the governor appointed him in April 2005.

His handling of the rape case -- particularly comments he made soon after police arrested three lacrosse players on charges of assaulting an exotic dancer at an off-campus party in March -- fueled intense scrutiny of his tactics, motives and professionalism.

Nearly eight months after the alleged attack, the case continues to rivet national, even worldwide, attention on race and class issues in Durham.

The alleged rape victim is a black woman and single mother who has been a student at Durham's historically black N.C. Central University. The defendants are white, and Duke is one of the nation's most exclusive and expensive universities.

The DA campaign is seasoned, too, by the nature of the opposition Nifong faces.

County Commissioner Lewis Cheek is on the Nov. 7 ballot. But he has said he will not serve if elected.

In essence, a vote for Cheek would be a vote to recall Nifong. If Cheek wins and keeps his pledge not to serve, Gov. Mike Easley will choose Durham's next district attorney.

Then there is county Republican Party Chairman Steve Monks, who is running as an unaffiliated write-in candidate.

Last week, the Cheek and Monks camps appeared to be in a verbal slugfest over which side could drum up the most anti-Nifong votes.

Monks, a lawyer and Houston native who has lived in Durham for four years, acknowledged in an interview that Cheek enjoys excellent name recognition and a good reputation. He also said it is an advantage for Cheek to be on the ballot.

But those leg-up factors, Monks said, are outweighed by Cheek's avowed refusal to serve as district attorney, no matter how many votes he might pull.

"Many are disenchanted with the idea of voting for someone who is not committed to serve," Monks said.

Selection of Durham's chief prosecutor, he said, should be in voters' hands -- not the governor's.

Monks said he is the best man for the job and acknowledged dual motives for tossing his name into the hat as a write-in candidate: a craving for public service, coupled with a desire to oust Nifong because of his handling of the lacrosse rape case.

"It has not been my life's ambition to be DA," he said. "It has been my life's aspiration to provide public service. If I could choose some other form of public service, I would do it. But the need for a new DA struck me like an open sore that needed to be healed."

For his part, Cheek said in an interview last week that he didn't think a write-in candidate had a chance of winning an election.

Cheek, a lawyer who mostly handles civil matters, also said he wouldn't support Monks just to give the anti-Nifong movement a better chance of succeeding -- even though the Monks camp recently asked him to do so.

"I would not feel comfortable doing something like that," he said.

Cheek said that even though he wouldn't serve as district attorney, his name on the ballot gives voters a viable and valuable alternative to Nifong.

"People ought to do whatever they think is right," he said. "If they're comfortable with Mike Nifong as DA, they ought to vote for him. Mike is a fine lawyer and a fine prosecutor. But my name gives people an opportunity to declare, 'I don't think Mr. Nifong is doing an appropriate job as DA.' "

Nifong says he could stomach the thought of losing an election, but not under the circumstances Cheek presented.

"You know you can always be removed by the voters," he said. "But you would hate to think you were removed because the voters had been conned and misled. People have fought and died for the right to vote. Now Lewis Cheek is telling voters to let [the governor] make their decision for them. That's wrong."

Cheeks bristled at those remarks.

"I take great exception to the suggestion that I have been part of an effort to con or mislead anybody," he said.

By all normal standards, the contest for district attorney would have been over in May, when Nifong beat contenders Freda Black and Keith Bishop in a Democratic primary.

At that time, no other challengers were in sight. Cheek and Monks didn't surface as candidates until later.

Cheek emerged with the backing of political movers and shakers like former Sheriff Roland Leary, former City Councilman Ed Pope and businessman Dan Hill.

Four months ago, about 10,000 people signed a petition to place Cheek's name on the November ballot -- many of them hoping to oust Nifong over his handling of the lacrosse rape case.

Cheek then kept the community on edge for weeks before announcing he would not perform the chief prosecutor's job even if he won the election. He said his decision was driven by personal and professional concerns, including his private law firm and his work as a county commissioner.

Still, many continue to support Cheek on an anybody-but-Nifong basis.

Whether Nifong likes it or not, many election-eve perceptions of him have been largely forged by his handling of the Duke lacrosse incident.

Several national television pundits, along with numerous Internet chatters, have accused him of rushing to judgment in the case and making public statements before he had sufficient evidence.

In at least one of those statements, he asserted that privileged, white hooligans must suffer the consequences for victimizing a relatively poor black woman. But sophisticated test results from two laboratories showed no DNA from any of the three defendants in or on the accuser's body.

Still, Nifong has said he did the right thing by pursuing the case, and that he would rather be right than keep his job as chief prosecutor.

"I don't have anything to be vindicated for," he said immediately after winning the Democratic primary.

Nifong also frequently has denied suggestions that he deliberately hyped the lacrosse case to gain ground in the primary.

"I'm not a political animal," he said even as the May vote tally was being finalized. "Politics isn't in my blood. This isn't really that much fun."

And in a July news conference, Nifong admitted he would handle the publicity angle of the rape case differently if he had it to do over again.

"I both underestimated the level of media attention this case would draw and misjudged the effect that my words would have. ... When you're in law school, there are no courses on dealing with the media," he said.

http://www.heraldsun.com/durham/4-782816.html

* More warm and fuzzy.

And by wrong about, that means a not guilty verdict, regardless of the prevailing opinion in news or why the verdict was returned, technicalities or not.

Nice theory, but there are some major problems with it. Among other things, since defendants generally do not have the same discovery requirements as prosecutors, defendants may decide to withhold certain exculpatory evidence until trial. A prosecutor may have a case that is absolutely rock-solid according to all the information he has access to, and yet have it undermined by evidence he couldn't have known anything about.

At present, defendants generally have an incentive to let reasonable prosecutors know of such evidence in the hopes that the prosecutor will save everyone's time and drop the case. If defendants could be assured that their costs would be reimbursed regardless they might feel less incentive, especially since holding back could slightly increase their chances for acquittal.

I really don't see any way of avoiding moral hazards in this sort of loser-pays scenario. I also think there needs to be separation of the issues of whether (1) the defendant deserves some reimbursement, or (2) the prosecutor deserves to be penalized personally. I would suggest that setting up clear standards to allow a prosecutor to be personally sued for a defendant's legal costs in the event that the defendant can prove that no reasonable prosecutor could have believed beyond a reasonable doubt that the defendant was guilty of the specific named offense(s) and that he could prove it.

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