Duke's Rush To Judgment (Durham, The Massachusetts Of North Carolina Rape Injustice Case Alert)

Frontpage Interview's guest today is KC Johnson, a professor of history at Brooklyn College and the CUNY Graduate Center. With a B.A. and Ph.D. from Harvard University, he specializes in 20th century U.S. political, constitutional, and diplomatic history. He writes a blog, Durham-in-Wonderland, which offers comments and analysis about the Duke/Nifong case.

FP: Kindly summarize briefly for our readers what this case involving the three Lacrosse students is about.

Johnson: This is the story of how a case virtually devoid of evidence, constructed upon a tissue of procedural irregularities, nonetheless has lurched forward. At a March team party at an off-campus house rented by three lacrosse captains, one captain hired two exotic dancers to perform. After leaving the party, which ended sourly, an African-American dancer with a criminal record and a history of false allegations (including an unpursued claim that three men raped her a decade ago) claimed to have been raped to prevent being involuntarily committed at Durham Access Center. After going through multiple stories, the accuser eventually settled on a claim of a violent gang rape by three players (with three others, who were never charged or in any way identified, serving as accomplices). The rape, she alleged, lasted a half hour; and at least two of her attackers, who she said didn't wear condoms, ejaculated.

Although the second dancer contradicted her account in virtually every way; the team captains gave statements to police, without their lawyers present, denying the allegations and voluntarily turned over to police DNA samples and their e-mail account passwords; and although the team captains offered to take lie detector tests (an offer the police spurned); and no DNA matches of any sort between any player and the accuser's DNA appeared; and although an original photo line-up of the players found the accuser unable to identify her alleged attackers, D.A. Mike Nifong eventually indicted three players, including one, Reade Seligmann, whose attorney produced a videotape of him more than a mile away, at an ATM machine, at the time of the alleged crime.

FP: Let's talk about District Attorney Mike Nifong's conduct. What is your angle on it and why has the legal community and most of the media been so quiet about it?

Johnson: Nifong's conduct in this case is the most unethical of any district attorney I have ever seen; I cannot recall a case in the last 15-20 years in which this many procedural violations were known at this stage of the process.

This is a man who violated multiple provisions of the North Carolina Rules of Professional Conduct simply to get a case. His most damaging violation was ordering the Durham Police not to follow their own procedures in the line-up that resulted in the identification of the three players charged. The procedures required five filler photos per every suspect; Nifong told police to confine the line-up to suspects—members of the lacrosse team.

The media, of course, were not initially quiet: led by the New York Times, early coverage all but had the players tried and convicted. The case fit into a comfortable narrative for a liberal media elite of out-of-control wealthy white athletes violating a poor African-American woman. As the case has collapsed, most media—with the crucial exception of the Raleigh News & Observer and CBS's 60 Minutes—abandoned interest in the affair, rather than revisiting their early flawed reporting. The New York Times, meanwhile, published a widely ridiculed August article that read more like a public relations piece for Nifong than a piece of journalism. The article contained four out-and-out errors of fact, all of which tilted the story in favor of the prosecution, and all of which the Times refused to correct.

FP: What has been the overall reaction of the Duke faculty and administration? What is your take on it?

Johnson: In the first week of the investigation (March 16-23), Duke administrators actively assisted the state. Without informing President Richard Brodhead, administrators demanded from the captains a candid account of the evening's events, allegedly citing a non-existent "student-faculty" privilege to encourage the captains to disclose any criminal activity. Multiple sources told me that Coach Mike Pressler, apparently acting on orders from above, instructed the other players not to tell their parents about the police inquiry. Meanwhile, Dean Sue Wasiolek arranged for a local lawyer, Wes Covington, to act as a "facilitator" in arranging for a group meeting with police.

After Nifong began his publicity barrage on March 27, faculty leftists became involved. Houston Baker, a professor of English and Afro-American Studies, issued a public letter denouncing the "abhorrent sexual assault, verbal racial violence, and drunken white male privilege loosed amongst us" and demanding the "immediate dismissals" of "the team itself and its players." Then, on April 6, 88 members of Duke's arts and sciences faculty signed a public statement saying "thank you" to campus demonstrators who had distributed a "wanted" poster of the lacrosse players and publicly branded the players "rapists." To date, not a single member of what has become known as the "Group of 88" has retracted his or her signature or publicly criticized Nifong's procedural violations.

(I started my blog as a response to the Group of 88's statement, which I considered a betrayal of the signatories' duties as faculty members, and only expanded to the case itself as the magnitude of Nifong's procedural misconduct became clear.)

As Brodhead failed to resist his faculty's assault on due process, his actions, whether intended or not, fortified a public image of guilt. On March 25, in an unprecedented move, the president cancelled (at the last minute) the lacrosse team's game against Georgetown, citing underage drinking at the party. Then, on April 5, Brodhead demanded Pressler's resignation, cancelled the lacrosse season, and issued a statement anchored by a lament on the evils of rape—at a time when the players were firmly denying any sexual contact, much less rape. These moves enjoyed enthusiastic support from Board of Trustees chairman Robert Steel. The president later issued a statement urging a trial, on the grounds that it would give the accused players an opportunity to be "proved innocent," in effect turning on its head 220 years of American constitutional history.

Based on the actions and statements of both the faculty and administration, a fair-minded neutral observer could only conclude that Duke's administrators and most outspoken professors believed that a rape occurred.

Johnson: In Nifong's case, the political motivation was straightforward. An appointed district attorney, he was running in the May Democratic primary against two challengers: a well-known white woman, Freda Black, whom he had fired as an assistant district attorney in one of his first acts in office; and a weak black candidate, Keith Bishop. The party's electorate was about evenly divided between white and black voters.

Black was much better known than Nifong (she had helped prosecute a high-profile murder case in 2003), and in mid-February, she seemed on the verge of putting the race away. Nifong started having trouble raising money—he attracted only $1150 in contributions for all March—and, to keep his candidacy alive, he loaned his campaign nearly $30,000. (A lifetime bureaucrat whose wife is a "victims' rights" advocate, Nifong isn't personally wealthy.)

Then came the lacrosse allegation. Nifong took control of the police investigation, gave over 50 interviews that highlighted (in misleading fashion) an alleged racial motive for the alleged crime, and soared in polls. He captured the primary by 881 votes, thanks to robust showings in black precincts.

In the fall campaign, two unaffiliated candidates ran against him: with minimal support from the white community, Nifong again squeaked through, with less than 50%, thanks to overwhelming backing in black precincts. By the fall, he had abandoned all pretences that his motives were anything other than political, stating at one point that his trying the case would address Durham's "underlying divisions," and wildly claiming that his critics considered his prosecution "a threat to their sense of entitlement and that they do not trust a jury of Durham citizens to decide" the case.

FP: How do you think the Duke/Nifong case will turn out? Crystallize for us the main lessons we must all draw from it.

Johnson: Legally, the outcome of the case very much depends on the judge, Osmond Smith. Any judge with integrity would have to suppress the procedurally improper line-up ordered by Nifong and then used to indict the three players; without the results from that line-up, Nifong has no case. There are two other key decisions the judge could make: (1) He could grant a defense motion to force Nifong's refusal from the case, which in effect would dismiss the charges, since it's inconceivable any other prosecutor would try this case; or (2) he could grant a motion for a change of venue, which would effectively ensure an acquittal, since Nifong has constructed his whole case around appealing to biases with Durham's community.

There are myriad lessons we should draw from events of this case, including the following:

Rape law needs modification. Until the 1970s, rape law was far too friendly to the defendant; now it is the reverse. Nifong has done many unethical things in this case, but he has been correct in one assertion: under North Carolina law, a jury can convict solely on the testimony of the accuser and her identifying her alleged assailants. That means that, as a matter of law, Reade Seligmann could be convicted—even Seligmann has electronic and physical evidence that can definitely prove his innocence (he's on videotape a mile away at the time of the alleged crime).

Duke, as an institution, has revealed a hollow moral core. Seven months into a case of what might be the highest-profile example of prosecutorial misconduct in the last decade, two Duke law professors and two Duke arts and sciences professors have publicly criticized Nifong. Meanwhile, Group of 88 members continues to defend their actions, even to the point of making demonstrably false public assertions about the players. Meanwhile, Brodhead has shown himself unwilling or unable to lead the institution, allowing what amounts to a "separate-but-equal" system to be established in Durham, under which Duke students are second-class citizens.

The silence of North Carolina's political and legal establishment regarding Nifong's misconduct is stunning.

The media needs to reconsider how it covers rape cases. To a greater extent than any crime other than child abuse, a presumption of guilt exists.

The next time the NAACP speaks up on behalf of standard procedure in a criminal justice case, the media should ask why the organization betrayed 70 years of its principles on criminal justice issues to give Nifong a pass in this case.

In Durham, North Carolina, a robust constituency exists for the politics of revenge and prosecutorial misconduct.

[More commentary and letters by Duke Engineering Professor Gustafson: credit via FODU site.]

Sunday, November 12, 2006

Dear Mr. Saunders

Gotta love freedom of speech, and the xanga site that allows me to have it. Here's a letter I wrote to News and Observer editorialist Barry Saunders regarding his recent editorial, "He's here to stay, so get used to it":

Mr. Saunders-
Having read your recent editorial in The Durham News section of the News & Observer, I have to say that I'm truly disturbed by the way you decided to use stereotypes of Duke students to further the divide between the overlapping Duke and Durham communities. The mock sendoff speech you attribute to potential Duke parents is simply a shameful way of reinforcing the negative, and largely untrue, stereotypes that the media continues to use in order to gain the favor of the ill-informed. Even the subtle jab at Duke's Northern population, "...Duke parents send their kids off to college *down here*" (emphasis mine, but I suspect also yours) continues the sad history of some Durham residents trying to make Duke "The Other" for their own gain, rather than a part of the Durham community for all of our good. Through your editorial, you have contributed to a strengthening of prejudice rather than using your talents, position, and judgment to effect some positive change.
Beyond that, I would like you to consider, for a moment, that some of the votes cast against Mr. Nifong, or in favor of Mr. Cheek or Mr. Monks, came about as a result of Professor James Coleman's very public statement that he believes Mr. Nifong has engaged in prosecutorial misconduct. I would like for you to consider that none of us in the community would appreciate the kind of treatment Mr. Moezeldin Elmostafa has received at the end of the blunt instrument that has been Mr. Nifong's investigation.
Sincerely,

Michael Gustafson

Posted 11/12/2006 at 10:45 PM

http://www.xanga.com/DukeEgr93/546943224/dear-mr-saunders.html

Tuesday, November 07, 2006

Outrageous

Outrageous is a word describing something that causes outrage. The following quote from District Attorney Mike Nifong did just that to me this morning (from WRAL):

"The majority have been very friendly. There have been a few people who have not," a cheerful Nifong said later as he greeted voters in the parking lot of Temple Baptist Church. "There was one guy who came by with a lacrosse T-shirt. I didn't talk to him. I might have prejudged him _ I'm not sure."

This is a man who, my colleague James Coleman has said, has practiced prosecutorial misconduct in railroading three Duke students for a rape, kidnapping, and strangulation charges. This is a man who holds the lives of these three men in his hand, as well as twisted this community around his finger so he could become the elected, versus appointed, district attorney. This is a man who knows that death threats were shouted at these men as they were in court. This is a man who hasn't met with the accuser NOR the attorneys for the accused.

AND he has the arrogance to make a JOKE about that - about prejudgment? The chasm into which Mr. Nifong's professionalism continues to sink apparently knows know bounds. I am outraged.

Posted 11/7/2006 at 11:45 AM

http://www.xanga.com/DukeEgr93/545406710/outrageous.html

http://www.xanga.com/DukeEgr93/544349155/on-midterms.html

http://www.xanga.com/DukeEgr93/542488544/another-kind-of-silence.html

http://www.xanga.com/DukeEgr93/540973343/will-the-gates-open-wide.html

http://www.xanga.com/DukeEgr93/540231190/on-voting.html

http://www.xanga.com/DukeEgr93/538669180/letter-to-the-editor.html

http://www.xanga.com/DukeEgr93/548808875/ugh.html

[For the record]

Lawyers say condemned man delusional

By John Stevenson : The Herald-Sun, Nov 22, 2006 : 11:31 pm ET

DURHAM -- Death row inmate Guy Tobias LeGrande apparently couldn't care less about the efforts of two Durham lawyers working feverishly to save his life, which the state plans to snuff out by lethal injection Dec. 1.

The attorneys, Jay Ferguson and Duke University law professor Jim Coleman, say LeGrande is so delusional that he expects an automatic pardon from his 1996 murder-for-hire conviction in Stanly County.

He also believes he is due money -- and lots of it -- because state officials falsely imprisoned him, according to Ferguson and Coleman.

Ferguson, who has done appellate work for years, said he has never before encountered such a situation.

"He won't talk to me," the veteran attorney said of LeGrande. "He doesn't think he needs me. He thinks he is either being pardoned or has already been pardoned. It's too bad. There are a lot of facts in his case that point to innocence. But it's hard to investigate them without his cooperation."

Coleman said that he, too, was shunned when he last met with LeGrande.

"He decided I was working for the prosecutor, and he went berserk," said Coleman. "He wanted me out of there. He was banging on the walls. The suddenness and violence of his reaction was startling."

The way Ferguson and Coleman see it, such delusional behavior is evidence of a mental illness that should suffice to gain gubernatorial clemency or a judicial stay of execution for LeGrande. They say the illness was present during LeGrande's trial a decade ago, prompting him to fire his lawyers and represent himself with unparalleled amateurishness.

For weeks, the Durham attorneys have scurried around the state in their bid to save LeGrande, remaining motivated despite their client's lack of helpfulness.

A clemency petition was presented to the governor on Nov. 14. New legal documents have been filed. Now, Ferguson and Coleman are prepared to go all the way to the U.S. Supreme Court.

"Someone's got to stand up for people like Guy LeGrande," said Ferguson. "He doesn't understand he is going to be executed, but I do. He fully believes he has been pardoned, is going to be released and will receive a large sum of money from the government."

According to Ferguson, LeGrande already has written his family with the news, "I'm getting out soon."

Ferguson and Coleman received court appointments for their work on behalf of LeGrande, who has been diagnosed as psychotic, reportedly suffering from a "delusional disorder with grandiose and persecutory delusions."

Another last-ditch mental evaluation is now in progress.

LeGrande was convicted of first-degree murder and sentenced to die for the slaying of Ellen Munford -- a killing that was arranged by the woman's estranged husband, Tommy Munford.

Evidence indicated that Tommy Munford plotted to kill his spouse for insurance money and hired LeGrande to pull the trigger.

The husband was allowed to plead guilty to a reduced charge of second-degree murder and is eligible for parole next year.

Although he fired his lawyers and represented himself at trial, LeGrande had standby counselors in the courtroom. But he ignored them and didn't let them participate in the proceedings, saying he received his guidance from Oprah Winfrey and Dan Rather.

When the standby lawyers filed a written motion suggesting LeGrande was mentally ill and legally incompetent, LeGrande tore up the paperwork.

A judge allowed the case to go forward anyway.

LeGrande wore a Superman T-shirt on most days and verbally harassed jurors, telling them to kiss his behind and calling them the anti-Christ, according to Ferguson, who was not one of the standby attorneys.

There was no physical evidence to link LeGrande to the murder.

"Nothing," said Ferguson. "Not a hair, not a fingerprint, not a drop of blood. Absolutely nothing."

Ferguson said only two witnesses were able to incriminate LeGrande.

One was Tommy Munford, the estranged husband who plotted his wife's murder and later received a generous plea bargain.

"He's certainly biased," Ferguson said.

The other witness was a woman named Barbara Taylor, who testified that LeGrande had confessed to her. She reportedly received $3,500 in reward money.

Racial issues play a center-stage role in the clemency efforts being mounted by Ferguson and Coleman.

LeGrande is black but had an all-white jury. The Munfords were white.

The prosecution of LeGrande was spearheaded by District Attorney Ken Honeycutt, who succeeded in getting at least three other black men sentenced to death by all-white juries in the 1990s.

Honeycutt gained notoriety for wearing a gold lapel pin shaped like a noose, and for awarding such pins to assistant prosecutors who won death-penalty cases.

However, two of Honeycutt's death verdicts were overturned because he allegedly withheld critical evidence.

All of which leads Coleman, the Duke law professor, to think LeGrande might not be a killer.

"His claim of innocence is not frivolous," Coleman said in an interview. "It is possible he really is innocent."

It is true that LeGrande knew about the plot to murder Ellen Munford, Coleman acknowledged.

But that was only because Tommy Munford "shopped around" the idea to various people -- including LeGrande -- as he sought a triggerman, the professor said.

So LeGrande's knowledge of the scheme was not conclusive evidence of guilt, Coleman added.

At one point, LeGrande offered to tell a Stanly County newspaper who murdered Ellen Munford if the paper would pay him $50,000, reports indicated.

"He clearly was trying to make money for what he knew," said Coleman. "But is that plausible behavior for a person who actually did the killing? It doesn't prove he didn't do it, but it does raise questions. Those questions should have been investigated."

http://www.heraldsun.com/durham/4-791730.html

**The Durham hoax, fraud, extortion scam was nailed by these folks within 7 days.

Eight months later, an election fraud has been perpetrated upon the citizens of Durham County.

The citizens continue to be lied to, misled, and purposely confused by the local hierarchy.

Was is all a setup would now be better asked, who is guiding the ongoing conspiracy?

'Scarborough Country' for March 30 MSNBC TV
Updated: 10:56 a.m. ET March 31, 2006

Guests: Eddie Thompson, Michael Cardoza, Nicole Deborde, Stacey Honowitz, Melissa Caldwell, Jack Benza, Butch Williams, Kerry Sutton, Stacey Honowitz, John Patrick Dolan, Steve Sax, General Wayne Downing

JOE SCARBOROUGH, HOST: Right now in SCARBOROUGH COUNTRY, duped at Duke. Suggestions that that college gang rape was all a hoax. Lawyers for two university Duke lacrosse players, at the center of horrific allegations mount a furious counterattack. They say no rape. They say no sex. They say no crime. Was it all a setup? - cut-

But first the investigation of a possible gang rape involving the Duke University lacrosse team. It‘s split that campus and the community in two bitter camps. Police say an exotic dancer was raped, but the players continue to deny the allegations. Did members of the lacrosse team rape and brutalize a young, exotic dancer, or was it all, as their lawyers are suggesting tonight, an elaborate hoax? We‘re going to hear from two of the attorneys from the players in a minute. But first, with us live from the campus of Duke is NBC‘s Michelle Hofland. What‘s the latest there?

MICHELLE HOFLAND, NBC CORRESPONDENT: Well, tonight it appears that the district attorney here is backpedaling a little bit. When I spoke with him late today, he says that he still is confident that the woman was raped, and that she was raped at that off-campus apartment.

But now he says that he‘s not so sure that it was a lacrosse player after all, that he‘s really not sure. He‘s waiting for the DNA results. Now, I said how can that be, when you told me that everyone inside that party was a lacrosse player? And this is what he said, is that all he knows about who was inside that apartment came from the lacrosse players, and maybe all of them omitted three other people who could have been at that party. A little bit confusing and we‘re waiting now.

Interestingly this all comes the same time that the attorneys for the lacrosse players are coming out and saying, hey, these people, they did not do anything wrong.

They did not touch these women. There was no sexual contact. We want these DNA test results to be done. We want them to come out, because it will prove our innocence. That‘s what the attorneys are saying. So it‘s a very interesting time. Things are shifting a little bit here, and we‘re waiting for the test results, expected to be out sometime next week.

SCARBOROUGH: You know Michelle, over the past 24 hours, the dynamics of this case seem to have changed so much. Twenty-four hours ago anger was growing on that campus. I know it still is in some quarters. Then everybody in the media and in the D.A.‘s office was suggesting this was an open-and-shut case. Now the D.A., like you said, is backing off. Plus we hear that he‘s saying, even if these DNA tests come back, and all the lacrosse players are cleared, there‘s a possibility that maybe they didn‘t leave any evidence on them, because they were wearing condoms. Is this a D.A., and is this a department, that‘s furiously backpedaling tonight?

HOFLAND: You know that‘s what it appears. I have not heard actually about the condoms. That I have not heard in this case. It may be that that‘s just what hasn‘t been—what we haven‘t heard here at the scene. But, yes, it does appear that there is some backpedaling going on.

Something else also is that he is saying, oh well, you know what? What I don‘t understand here, according to the district attorney, is that these guys just haven‘t been very cooperative. None of these lacrosse players are being cooperative. And their attorneys are saying, hey wait a minute, all these guys, they gave them their DNA evidence.

And the district attorney says, yes, but they‘re not being cooperative, because none of them are coming forward and saying this is what happened inside the party. This is what these men did to this poor girl. But the attorneys are saying, hey, these guys can‘t come forward and say that, because it didn‘t happen. So a lot of interesting things, and shuffling, and interesting facts that are happening here in Duke right now.

SCARBOROUGH: It is fascinating, and it‘s a fast-moving story. NBC‘s Michelle Hofland, as always thanks a lot for being with us. We really appreciate it.

Now earlier today, I spoke with attorneys for the two captains of the lacrosse team. And what they told me may surprise anybody who‘s been following this story. And I want to underline this. This is so important. And we see this time and time again, where you have a group of people or you have a person who is accused by the media, because they‘re in the wrong place at the wrong time. You know, maybe there are three people on this team that are guilty of brutalizing this young poor lady. We don‘t know.

But at the same time maybe you have an entire team that‘s being slimed, because somebody else committed the crime. You remember the runaway bride? You remember how everybody, when she disappeared, everybody was looking at the husband? We were all sure he was guilty of something. Well, we found out later on, that wasn‘t the case at all.

So we just have to be careful, we have to slow down and just like we don‘t want to jump to the other side and say, hey this thing definitely is a hoax, you certainly have to remember in America, you are innocent until proven guilty. We forget that sometimes in the media. Well I started my interview when I was talking to these lacrosse players‘ attorneys by asking Butch Williams what his client is saying happened on the night in question. Take a listen to what he told me.

(BEGIN VIDEOTAPE)

BUTCH WILLIAMS, ATTORNEY FOR ACCUSED DUKE PLAYER: Well he‘s categorically denied, both in writing as well as to anyone that will listen that nothing occurred of a sexual nature that night.

SCARBOROUGH: Let me read you what the police report says about the victim. It says the victim had signs, symptoms and injuries consistent with being raped and sexually assaulted vaginally and anally. Can you tell us what your clients have told you, or what other people on the lacrosse team are saying, about the police suggesting that in fact she was raped that night?

WILLIAMS: Once again, we can‘t. I can speak for my client. And I‘m sure Kerry feels the same way. I can‘t speak on whatever my client has told me, because that‘s privileged information. But, as an overview, I can speak of what some of the outside investigators are bringing up there. I think the police report states that there may have been sex that night, but it doesn‘t necessarily mean—and that‘s where the DNA, to us, is going to prove substantial, as to who she might have had sex with that night.

SCARBOROUGH: So your suggestion, or at least the suggestion of your client and others on the team, is if she had sex, it wasn‘t with anybody on the Duke lacrosse team.

WILLIAMS: Correct.

KERRY SUTTON, ATTORNEY FOR ACCUSED DUKE PLAYER: That‘s right.

SCARBOROUGH: Kerry Sutton, let me bring you in here. Is your client telling you the same thing as Mr. Williams‘ client is telling him, that nobody inside that home had any sexual contact with this exotic dancer?

SUTTON: That‘s what‘s telling me, and that‘s what he told the police when he gave them a voluntary statement in writing and orally. And that‘s what he and teammates have said from the beginning.

SCARBOROUGH: Mr. Williams, I want to play you a 911 call that I suggest many Americans are going to be paying a lot closer attention to in the coming days. Take a listen.

911 CALL AUDIO: It‘s right in front of 610 Buchanan Street. And I saw them all come out like a big frat house, and me and my black girlfriend are walking by, and they called us n-----s. They didn‘t harm me in any way, but I just felt so completely offended, I can‘t even believe it.

SCARBOROUGH: Mr. Williams, talk about some of the inconsistencies in this 911 tape and the other one that occurred about 30 minutes later.

WILLIAMS: Well, if you listen to it in the tapes, first, they say I‘m riding by, then they say we were walking. And then they called out the actual address, 610. There are no numbers on that house. You cannot see that number. You cannot depict the address in the daytime, more less at night. So, you know, that right there was one of the first things glaringly that stepped out to me, that it couldn‘t have been anyone just riding by and randomly getting singled out. The other thing is, you know, for something—I mean if a person calls you a name, you dial a 911, and not being attacked or anything like that. That all too also stuck out in my mind as, you know, being almost contrived.

SCARBOROUGH: So are you suggesting that this may be a hoax? That possibly this exotic dancer and her friend may have set this—may have tried to set the Duke lacrosse team up?

WILLIAMS: I‘m not going to say it‘s a hoax, and I‘m not going to get into setups at this particular point, because we‘re still working on each and every angle of the case. The only thing I say it‘s just mighty coincidental that these calls came in, citing the address, in close proximity in time to the allegations being made.

SCARBOROUGH: And Kerry Sutton, apparently the second call that came reporting the rape 30 minutes later, was at a Kroger grocery store several miles away, when they had opportunities to make calls right there in that neighborhood, correct?

SUTTON: Correct. And the Durham Police Department headquarters is much closer than that Kroger store two and a half miles away.

SCARBOROUGH: What‘s the D.A. doing though—again, talking about getting out in front of this story. Now he‘s even assuming that the DNA evidence may come back and may let both of your clients off the hook, but then says, hey, I still got them.

WILLIAMS: Because quite frankly, if the DNA doesn‘t come back, it‘s definitely not in their favor when they have told everybody in the press, and now it seems like around the world, that all we want to get the DNA, and the DNA is going to show us x, y, and z. This is all what we call premature.

SCARBOROUGH: Butch, make a prediction for us. Do you think your client and the rest of the team is going to be cleared? And if so, how long is it going to take to get all the facts out on the table and get this part of their lives behind them?

WILLIAMS: It‘s not just these young men that are on the front. Duke University, a very fine prestigious university, is being drug through the mud across the United States, as well as these young men. All of them have families, you know, in different parts of the country, that have had to answer questions on this. Just think, if in fact they have been wrongly accused, as we believe that they have, how do you get your life back? How do your family get their name back? So that‘s what we‘re working for. It‘s not just about this rape. It‘s about total vindication for these young men.

SCARBOROUGH: All right. Butch Williams, Kerry Sutton, thank you so much for being with us. And this is a story obviously that‘s going to continue. And like I said before, I think we‘re going to be—everybody‘s going to be looking a lot more closely at these 911 tapes in the coming days. Thank you so much for being with us and good luck.

WILLIAMS: Thank you Joe.

SUTTON: Thanks Joe.

(END VIDEOTAPE)

SCARBOROUGH: And let‘s bring our legal expert. Stacey Honowitz is a prosecutor, and John Patrick Dolan, a criminal defense attorney. Stacey, of course, whenever you have a possible victim like this you have to bend over backwards. I think we‘ve been doing that the past couple nights. But isn‘t it time to stop and say, hey wait a second, if this DNA evidence comes back and it doesn‘t pinpoint any lacrosse player, the D.A. has got to drop the case against them, right?

STACEY HONOWITZ, PROSECUTOR: Listen, Joe, the bottom line is, you know, you don‘t always need DNA to prove a rape case. Everybody knows that. Sometimes you‘re not going to have biological evidence.

SCARBOROUGH: But the D.A. didn‘t know that Stacey. Just a couple of days ago he was saying this DNA evidence is going to prove this case. And now he‘s saying, well, maybe I was wrong.

HONOWITZ: I think what the D.A. was saying was we can definitely say by the credible—we thought that this victim was credible and we saw bruising, we saw vaginal injuries, anal injuries, everything to say to lead to the fact that this was nonconsensual sex. And I think everybody else was bringing up the D.A. It was the defense attorneys that kept saying the D.A. is going to prove it...

SCARBOROUGH: But the D.A. has to prove though...

HONOWITZ: The D.A.‘s going to prove that—the DNA is going to prove that our clients aren‘t guilty, When in fact the DNA wouldn‘t.

SCARBOROUGH: Okay, Stacey, hold on a second though. I mean, there are a lot of people there. They‘re going to have to actually prove that a Duke lacrosse player was responsible for this. The lady could have had sex with somebody else that night, couldn‘t she have?

HONOWITZ: Yes, well we have to wait and see if she made an identification. Certainly the investigation has to move forward. Can she identify the perpetrators that were in the room with her that night? Certainly if she can, and there‘s no DNA, it doesn‘t mean that the D.A. can‘t prove the case. If there‘s DNA, and she picks them out of a lineup, well certainly there‘s a great case there. So the DNA is not going to be dispositive as to whether or not she had nonconsensual sex with any of the lacrosse players in the house that night. And that‘s what we‘re waiting to see.

SCARBOROUGH: John, could this all have been a hoax?

JOHN PATRICK DOLAN, CRIMINAL DEFENSE ATTORNEY: It could have been a hoax. It could have been an ill-conceived hoax. And I have to say I disagree with Stacey. If the DNA doesn‘t match one of these players, with the background of these ladies who are credible, exotic dancers, I don‘t think the D.A.‘s going to bring a prosecution. Because there‘s no way that they would get a conviction, unless they had the slam-dunk of the DNA plus the identification. That‘s the only way it‘s going to work for the prosecution.

HONOWITZ: That‘ not right. That‘s not correct.

SCARBOROUGH: John, the D.A. screwed up. He‘s already overpromised, hasn‘t he?

DOLAN: Oh, yes. They‘re way out in front of this case too soon. This is what happens again and again in state prosecutions. They arrest people or they accuse people first and worry about evidence later. They don‘t do that in the federal government by the way.

SCARBOROUGH: Well John, what do you think about them leaking this document to the press a couple days ago about how this lady was sexually abused?

DOLAN: Well, that happens all the time. The prosecution leaks evidence all the time. And by the way, you never hear them prosecuted for doing that. And they get the spin out there early, and then people make all kinds of derogatory comments about the defense lawyers when they come on in...

SCARBOROUGH: ... It‘s going to blow up in their face.

DOLAN: It is.

SCARBOROUGH: John, thank you for being with us. Stacey. Stick around. We‘ll be right back with more SCARBOROUGH COUNTRY.

(COMMERCIAL BREAK)

http://www.msnbc.msn.com/id/12095352/

[For the record]

Officials could revise bail-bonding policies

By John Stevenson, The Herald-Sun
November 26, 2006 12:22 am
After years of taking it on the chin over what's widely criticized as a revolving-door court system that puts criminals back on the streets almost as soon as they are arrested, Durham judicial officials are considering revising bail-bonding policies next year.

And they may hold a public forum as early as January or February to help judges decide whether bonding guidelines need to be updated in response to evolving community conditions.

Current guidelines have remained unchanged for at least six years.

At the top of the felony scale, the guidelines provide no bond for those facing possible death penalties for first-degree murder.

The highest dollar figure on the chart is $200,000, suggested for first-degree rape suspects and first-degree murder cases not involving potential capital punishment.

The recommended bond in second-degree murder cases is $100,000. The maximum penalty for that crime is roughly 40 years in prison.

From there, suggested bail numbers go all the way down to $1,000 for Class I felonies, the lowest felony level on the books in North Carolina. Offenses in that category include public cross-burnings, safecracking and false bomb threats. The punishment goes up to 15 months behind bars.

Judges can deviate from the suggested dollar amounts at their discretion, but are supposed to be guided by public safety considerations, a person's previous criminal record and the likelihood a suspect might flee, among other factors.

District Attorney Mike Nifong is among those advocating a public forum before local bonding guidelines undergo possible changes.

"There's really a lot of misunderstanding out there," he said in an interview. "There's kind of a systemwide misunderstanding of what we do and how we do it.

"Once things are explained to people, whether they like what they heard or not, they are appreciative. It's good for members of the community to be informed and to give us their input. An informed citizenry would likely be less quick to assess blame when things go wrong."

But Nifong said public perceptions of a revolving-door court system probably will persist no matter how much local bonding guidelines are tinkered with.

Many believe it is too easy for criminal suspects to get out of jail on low bonds, only to commit new offenses and keep repeating the process in a vicious cycle of community-endangering violence.

Durham's revolving-door reputation has received intense scrutiny from a private watchdog group called the Durham Crime Cabinet and numerous writers of letters to the editor, among others.

"Whatever the [bail] numbers are, they're not necessarily going to address this perception," Nifong acknowledged. "And it doesn't matter what your bond is if you can post it."

Four years ago, a judge went way above the bonding guidelines and set bail in the $800,000 range for first-degree murder suspect Michael Peterson, who did not face the death penalty. Peterson soon went free by putting his million-dollar house on the line as bond collateral.

He later was convicted and sentenced to life in prison without parole for the fatal beating of his spouse, Nortel Networks executive Kathleen Peterson.

Similarly, a judge initially doubled the suggested $200,000 bond for three first-degree rape suspects in the controversial Duke lacrosse case. But the bonds then were lowered to $100,000 each.

The three defendants -- Collin Finnerty, Reade Seligmann and David Evans -- posted bail even before the reduction.

According to Nifong, professional bail bondsmen can manipulate the system by giving favors to criminal suspects they trust.

While bondsmen normally charge a nonrefundable fee of 15 percent, they can undercut or raise the fee as much as they like, he said.

"It makes for kind of an artificial system," he added. "The bondsman can require as little or as much as he wants to get you out [of jail]. It's whatever he feels comfortable with. This means things are not as cut and dried as they appear to be. Our bonding policies do not directly address that."

Like Nifong, Chief District Judge Elaine Bushfan supports a public forum on local bonding policies.

"Traditionally, one thing we have not done well is to talk to the people about what we do and how we do it," she said. "I just think it's time to educate our constituency. I believe it's appropriate to speak with the public before we decide to change things."

But suggested bond amounts never will be set in stone, according to Bushfan.

"It is in a judge's discretion to make decisions about this," she said. "That discretion cannot be taken away. Even if we revise the numbers, judicial discretion will remain."
URL for this article: http://www.heraldsun.com/durham/4-792537.html

DUKE PREZ SAYS RAPE CASE IS TESTING DURHAM

by CASH MICHAELS, The Wilmington Journal, Originally posted 11/26/2006

Brodhead warns of division

[DURHAM] Calling it “an event of some fame…that’s been a burden to us all,” the embattled president of Duke University told the Durham NAACP Saturday that the continuing saga of the Duke lacrosse alleged rape case presents a unique challenge for people on all sides of the racial controversy to “stand together” for the truth, and “…protect ourselves and each other’s humanity.”

He also seemed to suggest that the Duke Three deserved more of a “presumption of innocence” than many supporters believe they’ve been getting.

In his keynote remarks to the Durham NAACP’s 32nd Annual Freedom Fund Banquet Saturday night, Pres. Richard H. Brodhead admonished African-Americans and whites to remember the struggles and accomplishments of the civil rights movement; the positive historical relationship he noted between Duke and Durham; as the legal principles of due process, presumption of innocence and justice based on evidence, as the racially divisive case proceeds towards possible trial.

“And that’s why it seems to me that everyone who is a party to this issue, in this community or elsewhere, has got to understand that our collective community faith requires us to stand together for truth and justice, even in the face of difficult situations, and emotions,” Brodhead, who was warmly received, said.

At no time did the Duke president say anything about the two Black exotic dancers involved, or the three white Duke lacrosse players indicted for allegedly raping and kidnapping one of the females during an off-campus drunken team party last March.

But in surprisingly blunt language, Brodhead said he realized the explosive nature and implications of the allegations, and the tense issues they’ve provoked in the African-American community.

“I do understand that …what was alleged to have happened has a special emotional charge to it because of the idea of white men commandeering Black women for their pleasure has a painful history,” Brodhead read from his prepared remarks to the packed, predominately African-American audience at the Durham Hilton. “It has a history that one would not ignore, and that history was aggravated.”

“And in the spring when it became my burden or mission, some days, to remind people of the presumption of innocence, more than one person from this city asked me if I thought if it had been a Black man and white women, would that person have enjoyed the same presumption of innocence?”

“If it were from me, my answer was, ‘You bet they would.’”

Though Brodhead touted the principle of “presumption of innocence,” many parents of Duke students, and supporters of the university, feel the president displayed very little support for the 47-member lacrosse team after he suspended their national championship-bound season just days after the rape allegations were made public last spring.

In a joint statement, the captains of team publicly apologized for the party, but maintained that no rape occurred. Their coach, however, was forced to resign.

Duke Three supporters have also blasted Pres. Brodhead for not speaking out against what they believe to be a “false prosecution” of the defendants by Durham District Attorney Mike Knifing, based on reportedly scant evidence and an allegedly corrupted police photo ID lineup.

They believe instead of leaving the indicted students at the mercy of authorities, he should have rallied the Duke community in support of their own.

But Brodhead, the ninth Duke president in the prestigious university’s history, seemed to echo, albeit in veiled language, the concerns of many of his critics Saturday evening that the three white defendants may not be able to get a fair trial in Durham because of allegations that many Blacks see them as “privileged” white athletes with high-priced lawyers who, at the very least, were part of group from which racial epithets and threats with a broomstick were allegedly hurled at the Black female dancers.

African-American leaders – who agree that on average, typical Black defendants could never afford the legal firepower defending the Duke Three or generate the equivalent press interest in their claims of innocence - still deny claims that a fair trial with Black jurors impaneled in Durham can’t be conducted.

In delicate terms, Brodhead addressed the reality of African-Americans and whites seeing this case through their own unique racial and historical prisms.

“In truth, in our history, …people have had unequal advantage of the law. Some people have not had the benefit of those presumptions (of innocence), and others have. And I understand that is part of the situation we have lived through.”

Brodhead said he saw an unidentified, but presumably Black person on television last spring saying, “I don’t really care if the accused people are guilty or innocent. I would just be happy to see them convicted.”

Then Pres. Brodhead said he saw a “student leader at North Carolina Central University” say, “ What a stupid thing to say, I don’t know anyone who thinks that. Everyone I know thinks we need to have the truth be established, and then let’s have justice be rendered.”

“The world of due process and the world of justice based on evidence is a world we all need,” the Duke president continued. “We need the benefit of presumption of innocence. We need the benefit of waiting until the facts are in before judgment is rendered. We all need that, though I must say, people who have not had the whole benefit of the law know that they have as much or more to lose than anybody from the opposite world, a world where prejudice is allowed to make decisions.”

“A world in which you can decide whether someone’s guilty by deciding what category of humanity they belong to, or a world in which people feel free to reach conclusions without taking the trouble to establish the facts.”

“That is a dangerous world to live in,” Brodhead declared. “That’s not dangerous for some people; that’s dangerous for all people, and that itself is one of the lessons of the civil rights movement.”

Brodhead, who came to Duke in July, 2004, noted that when the controversy over the alleged rape exploded into the nation’s headlines, Durham Mayor William Bell and North Carolina Central University Chancellor James Ammons, joined him in a united front to call for calm in the community, and patience as the criminal justice system sorted out the details.

He urged that patience again, as the case proceeds towards what many anticipate could be a long and emotionally charged trial.

“In the coming months, we will be put under trial again, and we will have to remember that at that moment of trial, we have the need to protect ourselves and each other’s humanity,” Pres. Brodhead said. “To stand up for the general rights of truth and justice and due process.”

http://wilmingtonjournal.blackpressusa.com/news/Article/Article.asp?NewsID=74297&sID=4

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