Nifong a Topic at State Bar Council (and Feds Decline to Act for Now)

This week Durham District Attorney Mike Nifong could be slapped with more charges related to his handling of the Duke Lacrosse case.

This week the State Bar Council will be holding its quarterly meetings in Raleigh. During this time, the agency could add ethics charges against the Durham district attorney.

Nifong recused himself from the Duke Lacrosse case shortly after the state bar filed an ethics complaint against him last month. He's accused of misconduct for statements he made to the media last spring.

In a letter obtained by Eyewitness News, defense attorney, Joe Cheshire requested to meet with Nifong in March about the statements.

"I do not understand why you will reportedly speak to the media in such certain, condemning terms before all the evidence is in, but you will not have the courtesy to meet or even speak with a representative of someone you have publicly condemned," Cheshire stated in the letter.

Nifong could also face additional charges for withholding DNA evidence that was favorable to the accused players. Evidence that is now in the hands of the state's Attorney General.

"We accept these cases with our eyes wide open to the evidence, but with blinders on for all other distractions," Roy Cooper said.

The council will decide this spring if his public comments about the case were a violation of the professional rules of conduct. Nifong's ethics meeting is scheduled for May.

The U.S. Attorney General's office has responded to Congressman Walter Jones' request for a federal probe of the Duke Lacrosse Case.

In a letter delivered Thursday, Alberto Gonzales' office wrote that it would be, "Premature to initiate a federal investigation pending a criminal trial."

This means the Attorney General will not be getting involved in the case at this time.

http://www.newsobserver.com/100/story/533242.html

Published: Jan 17, 2007 12:30 AM
Modified: Jan 17, 2007 05:25 AM

Duke post seeks to defuse '88' ad
Jane Stancill, Staff Writer

Dozens of Duke professors have posted "an open letter to the Duke community" on the Web, explaining an ad last spring that has been widely criticized as a condemnation of lacrosse players.
The new letter, signed by 87 faculty and posted at www.concerneddukefaculty.org, refuses to apologize for the ad and reiterates concerns about issues of race and sexual violence on the Duke campus. It says the so-called "Group of 88" ad published in the Chronicle last April has been grossly misinterpreted. That ad has been a subject of heated debate on blogs, and its signers have received angry and sometimes racist e-mail messages.

"The ad has been read as a comment on the alleged rape, the team party, or the specific students accused," the letter said. "Worse, it has been read as rendering a judgment in the case. ... We reject all attempts to try the case outside the courts, and stand firmly by the principle of the presumption of innocence."

The letter was signed by "concerned faculty," many of whom endorsed the original ad. The ad, entitled, "What Does a Social Disaster Sound Like?", included anonymous statements by students talking about racism and sexism on the campus. The ad also thanked "protesters making collective noise."

The letter this week has backed off that a bit, saying, "We do not endorse every demonstration that took place at the time."

William Chafe, a history professor who signed both the ad and the letter, said the bloggers' interpretation of the ad has become the version people accepted. And that's wrong, he said. "We're trying to simply set the record straight and clarify we never claimed the lacrosse players were guilty," Chafe said.

No matter what happens with the lacrosse sexual assault case, the letter said, issues of race and sexual violence still exist on campus and should be addressed.

The "Group of 88" has been portrayed as politically correct, left-wing professors who rushed to assume lacrosse players were guilty of rape. The professors have been harshly criticized as the sexual assault case began to unravel.

The rhetoric has been heated on the Duke campus, where President Richard Brodhead has called for a restoration of the "fabric of mutual respect." Two weeks ago, a group of economics professors signed a letter saying the professors supported lacrosse players and all student-athletes, and expressing regret that Duke professors were viewed as prejudiced against some students.

That prompted an online petition signed by more than 450 Duke alumni and Duke supporters, standing behind the economics professors. Many of the petition signers targeted their anger at the "Group of 88."

In the online letter, concerned faculty say they won't apologize despite the fury.

"There have been public calls to the authors to retract the ad or apologize for it, as well as calls for action against them and attacks on their character," the letter said. "We reject all of these. We think the ad's authors were right to give voice to the students quoted, whose suffering is real. We also acknowledge the pain that has been generated by what we believe is a misperception that the authors of the ad prejudged the rape case."

Excerpts

Original ad published in Duke Chronicle ad in April -- http://listening.nfshost.com/listening.htm

"We are listening to our students. We're also listening to the Durham community, to Duke staff, and to each other. Regardless of the results of the police investigation, what is apparent everyday now is the anger and fear of many students who know themselves to be objects of racism and sexism, who see illuminated in this moment's extraordinary spotlight what they live with everyday. They know that it isn't just Duke, it isn't everybody, and it isn't just individuals making this disaster.

"But it is a disaster nonetheless. These students are shouting and whispering about what happened to this young woman and to themselves."

Letter from Concerned Faculty -- www.concerneddukefaculty.org

"In the spring of 2006, the Duke community was rocked by terrible news. We heard that a woman hired to perform at a party thrown by our lacrosse team had accused members of the team of raping her. Neighbors, we were told, heard racial epithets called out at the woman as she departed the party. The criminal proceedings and the media frenzy which followed are perhaps beginning to wind down. For us at Duke, the issues raised by the incident, and by our community's responses to it, are not.

"In April, a group of Duke faculty members published an advertisement in The Chronicle. The ad, titled 'What does a Social Disaster Sound Like?' was mostly a compilation of statements made by Duke students in response to the incident and its immediate aftermath. This ad has figured in many discussions of the event and of the University's response. It has been broadly, and often intentionally, misread."

Staff writer Jane Stancill can be reached at 956-2464 or janes@newsobserver.com.

January 17, 2007
Duke Faculty: Too Smart by Half
By Kathleen Parker

When Woody Allen said, "The brain is the most overrated organ,'' he must have had in mind North Carolina's Research Triangle, home both to the scandalous Duke lacrosse team "rape'' fiasco -- and to more Ph.D.s per capita than just about anywhere else in America.

Rarely have so many smart people behaved so dumbly.

Last week, the case took yet a new turn when discredited district attorney Mike Nifong, under pressure from the state prosecutors association, relinquished the case to the state attorney general.

In another development, the stripper who initially claimed she was beaten, raped and sodomized by three Duke University lacrosse team players -- Dave Evans, Collin Finnerty and Reade Seligmann -- has changed her story.

Again.

This time she says Seligmann didn't participate in the alleged assault after all, though she still insists he was there when the others did. She also changed the time of the alleged assault so that it no longer coincides with time-stamped receipts Seligmann produced months ago indicating that he wasn't at the party house when the incident supposedly took place.

A bit earlier, the dancer also decided she might not have been (children stop reading here) vaginally penetrated by a penis, which is required for a rape charge in North Carolina. Nifong dropped the rape charges, but intended to pursue the remaining charges of kidnapping and sexual assault.

And so it has gone for almost a year now. A new day, a new story.

Of all the questions still unanswered in this shameful saga, among the most perplexing is: How did so many smart people allow things to reach the level of hysteria we've witnessed in the past several months?

The answer is implicit in the question. Notwithstanding the rich brain trust created by the three points of North Carolina's "Triangle'' -- Duke in Durham, the University of North Carolina in Chapel Hill and North Carolina State University in Raleigh -- university communities are fertile breeding grounds for the totalitarian mindset known as political correctness.

Between a perverse form of liberation feminism that sanctifies strippers, prostitutes and porn stars -- and a dogma of victimology that places blame for all things at the feet of the white patriarchy -- the players were instantaneously presumed guilty by virtue of their being white males and privileged jocks.

By the same reasoning, the dancer was assured victimhood by her status as a black single mother/student, reduced by centuries of white-male oppression to stripping for food and tuition.

What happens next depends on the attorney general's review of evidence. In the meantime, members of the university community who participated in the demonization of the lacrosse team might examine their own souls.

The past year has not been exemplary for the keepers of the flame. Before any charges were brought against the three players, students produced a "wanted'' poster with photos of team members and demonstrated with signs reading, "It's Sunday morning, time to confess.''

Higher up the food chain, Duke faculty formed the "Group of 88'' -- a coalition of 88 faculty members representing 13 departments -- and ran an ad demanding that the lacrosse team players confess.

It's been quite a spectacle. It also has been a damning indictment of an intellectually dishonest culture that pretends to the virtue of enlightened tolerance, but only for a select few. White males are the last remaining group approved for public vilification.

In a March 2006 letter to the Duke administration just days after the alleged rape, English professor Houston A. Baker Jr. brought clarity to the anti-white male, anti-jock bias that is today entrenched on many college campuses. It reads in part:

"How many more people of color must fall victim to violent, white, male, athletic privilege before coaches who make Chevrolet and American Express commercials, athletic directors who engage in Miss Ophelia-styled 'perfectly horrible' rhetoric, higher administrators who are salaried at least in part to keep us safe, and publicists who are supposed not to praise Caesar but to damn the unconscionable ... how many?''

Got that, white-male-capitalist-pig-jocks of the world? Guilty. To Duke's credit, Provost Peter Lange responded to Houston with an eloquent reprimand against prejudgment.

Under pressure from feminist groups, college administrators long have sponsored lectures about date rape and sexual harassment, directed at young males, all of whom are presumed to be potential predators. In light of events at Duke, they might consider adding a new seminar to the roster -- one to review the rules of due process, the evil of mob rule, and the art of apology.

They might invite their faculties to attend.

kparker@orlandosentinel.com
© 2007, Washington Post Writers Group

Page Printed from: http://www.realclearpolitics.com/articles/...rt_by_half.html at January 17, 2007 - 04:30:33 AM CST

http://www.newsobserver.com/579/story/533049.html

Editorials Home / Opinion / Editorials

Editorial: Published: Jan 17, 2007 12:30 AM
Modified: Jan 17, 2007 04:22 AM

To be fair
Justice must not be hurried, but Duke lacrosse defendants now can look to special prosecutors for a timely review of evidence

So now the Duke lacrosse case - three former players face sexual assault and kidnapping charges - will be in the hands of two experienced prosecutors from the state Attorney General's Office. Jim Coman and Mary Winstead will take a fresh look at all evidence, says their boss, Attorney General Roy Cooper, and without the "distractions" that plagued Durham District Attorney Mike Nifong.
Nifong did make a mess of things. He very publicly announced his certainty that a rape had been committed -- a certainty that turned out to have been unwarranted. He disparaged the defendants. He relied on a photo lineup from which the accuser picked out her alleged attackers that consisted entirely of lacrosse players, potential suspects. That method went against the standard policy of Durham police.

In addition, a lab director said last month that he and Nifong decided to hold back DNA evidence that was favorable to the defense. Because of these problems and others, Nifong now faces ethical charges from the N.C. State Bar that could result in the loss of his law license.

Coman and Winstead are in a tough spot, to put it mildly. For one thing, their main witness, the alleged victim, the woman who says she was attacked at a March 13 party hosted by lacrosse players, has changed her story on several occasions. Nifong, for example, dropped rape charges against the three after the woman decided she could not offer with certainty a description of the episode that met the legal definition of rape.

With a hearing scheduled for Feb. 5 to hear defense motions (including one to throw out the police lineup as a legitimate identification of the players), this case was starting to move a bit. Cooper says it's too early to know whether that hearing will proceed. For Coman and Winstead, the first order of business will be to study the files and to interview potential witnesses. And they'll be talking to defense attorneys, which Nifong was reluctant to do. Obviously, these prosecutors can drop the case after those interviews and a review of the evidence. Or they can move ahead with it.

Defense attorneys indicate they don't object to the new prosecutors taking a thorough look at the case, and the players' lawyers indicate they have confidence in Coman and Winstead in terms of their personal integrity. Their reexamination must be careful and impartial. Ideally for all involved, the handoff to the Attorney General's Office -- which came at Nifong's request -- won't push resolution of the case too far into the future.

In the meantime, Nifong won't be enjoying himself as the State Bar examines his conduct. His fellow district attorneys have indicated their concern over his handling of this case, and indeed, it does reflect poorly on North Carolina's system of justice and what is supposed to be a prosecutor's resolve to find the truth and not just choreograph the system to obtain a conviction. Mike Nifong, of course, deserves the same fairness from the State Bar that the system is supposed to deliver for defendants in the courtroom. Certainly he has some explaining to do.

This episode has been painful for the accuser, the defendants and their families, for Duke University, for the community of Durham. These two prosecutors, however, are by experience appropriate people to look at the core of the case without prejudice toward any group or individual.

All rights reserved. This copyrighted material may not be published, broadcast or redistributed in any manner.

Link to thread.
http://z9.invisionfree.com/LieStoppers_Boa...?showtopic=1604

http://www.newsobserver.com/559/story/533037.html
Columns Home / Opinion / Columns

Rick Martinez: Published: Jan 17, 2007 12:30 AM
Modified: Jan 17, 2007 04:22 AM

What happens to justice?

Rick Martinez, Correspondent

A knot tightened in my stomach when I saw state Attorney General Roy Cooper stride to the podium Saturday to announce that his office is taking over the Duke lacrosse case from Durham District Attorney Mike Nifong. The AG strikes me as a guy who likes his cases as tidy as his suit. He didn't disappoint me.
"Agreeing to accept the prosecution of these cases doesn't guarantee a trial, nor does it guarantee a dismissal. It simply promises a fresh and thorough review of the facts and a decision on the best way to handle these cases," Cooper said.

While his words elicited cheers from the truth-and-justice crowd, they were a major disappointment for me. I hate this case and want it to go away.

And frankly, it's been crumbling quite nicely under Nifong's leadership. So much so that I predict all charges against Collin Finnerty, Reade Seligmann and David Evans will be dropped at a scheduled Feb. 5 hearing -- if it occurs.

That hearing is when the defense is expected to challenge the photo lineup used to identify the lacrosse players as perps. Nifong told The New York Times that if the accuser can't stand before Judge W. Osmond Smith and positively identify Finnerty, Seligmann and Evans, he doesn't have a case.

My money is on no case.

However, the likelihood of that hearing being held on schedule is fast evaporating. Special prosecutors Jim Coman and Mary Winstead are just now picking up court documents. It's doubtful they'll be good to go in less than 20 days.

So instead of heading toward dismissal, the Duke lacrosse case is likely to be saddled with more delay.

And for this we can thank the N.C. State Bar. It effectively forced Nifong out by filing a complaint against him before the case was resolved.

The way I figure it, the change of prosecutors, however well-intentioned, is yet another disservice to the families of the accused.

But in the case of the Evans family, I seem to be figuring wrong. Rae and David C. Evans told me in a phone conversation from their Maryland home that they welcome Nifong's recusal. They're after vindication, not merely dismissal.

Had Nifong remained in charge, they fear he would have moved for a dismissal of the charges without prejudice. That would give him the right to refile charges once the cameras had gone.

It also wouldn't surprise the Evanses if the district attorney were to imply that the accuser was intimidated into not testifying.

The way they see it, as long as Nifong was involved, the State of North Carolina would never conclude that their son is innocent -- only that authorities couldn't prove his guilt beyond a reasonable doubt.

For Rae and David Evans, that's nowhere near good enough.

So if the case drags on while the state's special prosecutors comb through the evidence (or lack thereof), re-interview witnesses or launch investigations into new areas, so be it. Evans' parents believe the more thorough the investigation, the more inevitable their son's exoneration.

That's nice, but I bet that's also what their son believed when he cooperated like a Boy Scout with the Durham police during the investigation's initial days. Look where that got him.

Despite the passage of time, this case is still a political and racial hot potato. And Cooper is a politician with a history of sensitivity toward the African-American community. When cross burnings hit Durham in the spring of 2005, Cooper was the only statewide elected official to show up at a Sunday unity rally (I know; I was there).

Sensitivity to minorities' concerns is surely a good thing, but there are people in Durham who won't be satisfied until this case goes to trial. That remains a distinct possibility given that Finnerty, Seligmann and Evans still carry felony indictments.

I told Rae and David Evans that they're rolling the dice by applauding Cooper's takeover instead of allowing the case to self-destruct under Nifong.

David Evans, a civil-case attorney, didn't budge. He's confident the AG's investigation will lead to vindication. As he put it, with his voice stiffening, once all the evidence is examined, the special prosecutors will conclude it's impossible to prosecute a crime that never occurred.

Contributing columnist Rick Martinez can be reached at rickjmartinez2@verizon.net

http://www.nj.com/columns/ledger/farmer/in...6170.xml&coll=1

Why isn't the legal profession on the case?
Wednesday, January 17, 2007

The Bush presidency isn't the only American institution that has fallen on tough times. The legal profession (and maybe legal education as well) has acquired a pair of black eyes in re cent days.

Beating up on lawyers is like shooting fish in a barrel. As icons of American life, lawyers rank right down there with used car salesmen and newspapermen. They don't have a big following. But what two of our legal brethren -- North Carolina District Attorney Michael Ni fong and Charles Stimson, a Pentagon official overseeing detainee af fairs -- have lately been guilty of should not be allowed to pass without appropriate notice.

If Nifong is not disciplined severely, maybe even disbarred, then the notion of "legal justice" is an oxymoron. And Stimson is simply another Bush right-winger whose understanding of constitutional protection for civil liberties is so shoddy that he should never again be allowed any role in American government.

Nifong is pretty well known by now. He's the runaway DA who had a trio of Duke lacrosse players indicted for rape and other charges despite a glaring lack of evidence and a complainant with a checkered record for the truth. To add to his improper behavior, Nifong publicly branded the players "hooligans" in a transparent attempt to poison the potential juror pool against them, staged a lineup that violated all guidelines for fairness and objectivity and withheld from defense attorneys the fact that DNA evidence showed the woman complaining of rape had indeed had sexual contact -- but not with any of the lacrosse players.

Nifong's case, bad as it was from the beginning, has gotten worse. The alleged victim has changed her story about the rape more often that the Bush administration has changed its rationale for attacking Iraq. Now she's not sure she was raped at all -- and if she was, it was by two, not three, of the players.

Why did Nifong do it? Apparently to salvage a sinking political career. The players were white, the alleged victim was black, Nifong was facing a tough re-election and the black vote was critical. Now Ni fong has asked the state attorney general to take over the case. But that's more chicanery -- he knew he was about to be removed from the case in any event. Nifong's a classic example of why prosecutors at any level should not be elected.

Stimson's offense is, if anything, even worse. Citing a list of private attorneys from major firms who represent Guantánamo detainees, Stimson, a deputy assistant secretary of defense, suggested in a radio interview that American corporations should dump these at torneys and their firms. Stimson's statement, as quoted in several newspapers, was crudely political and constitutionally grotesque:

"Who are the lawyers around this country representing detainees down there? And you know what, it's shocking ... I think, quite honestly, when corporate CEOs see that those firms are representing the very terrorists who hit their bottom line back in 2001 (actually, most detainees had nothing to do with 9/11), those CEOs are going to make those law firms choose between representing terrorists or representing reputable firms, and I think that is going to have a major play in the next few weeks. And we want to watch that play out."

Indeed, we do want to watch it play out -- if only to make sure these law firms, doing the kind of pro bono work that is a glory of the legal profession, are not subjected to the ham-handed government pressure that Stimson seems to favor and that is a hallmark of authoritarian regimes rather than a constitutional democracy.

What is most disturbing about the Nifong and Stimson cases is the tardy and timid response by those in authority who should have spoken out in protest at once.

Nifong finally has been removed from the Duke case, and the North Carolina Bar Association has begun an inquiry. But what took so long? Let's hope that when the bar association gets done with him, Ni fong will be reduced to writing wills for paupers.

Stimson has drawn some fire from legal scholars. But where are the state and national bar associations? Surely they're still committed to the right to an adequate defense and understand it's something burned into the very begin nings of this country and the whole concept of lawyers and the law.

No example of the role the law and great lawyers have played in the evolution of the American ideal of justice is more legendary than John Adams' defense of the British regulars who shot and killed civilians during the Boston Massacre. Guess Stimson never heard of him.

John Farmer is The Star-Ledger's national political correspondent. He may be reached at jfarmer@starled ger.com.

http://www.cherokeesentinel.com/news/2007/...pinion/017.html

To the Editor
Duke U. scandal

If you've followed the Duke University Lacrosse sexual assault case, (and because of national media attention, it's difficult not to...) you've probably come up with some opinions of your own. My main source of information on that case has been the print and electronic media. Frankly, I've cultivated a healthy distrust of the media, nevertheless, I do have an opinion. I've felt that D.A. Nifong's politically motivated grandstanding, behavior, and conduct bordered on negligence. His comments and actions have brought discredit on that state of North Carolina, himself and the legal profession. The full impact of his actions may be difficult to measure but undoubtedly contributed to additional pain, expense and suffering of the accused and their families. At the same time, he poorly served the state's judicial interests on behalf of the alleged victim. At some point one should've asked, has this district attorney caused irreparable damage to this case? Also, where was the NC Attorney General while D.A. Nifong was running amuck on national TV and elsewhere?

I was glad to see the North Carolina Bar Association step up to the plate and file these charges against prosecutor Nifong. In so doing, the watchdog group moved to uphold high standards of the law profession and accountability to the citizens of the great state of North Carolina. Unfortunatly, some folks may have the opinion that the NC Bar Association acted only after the threat of investigation by the U.S. Attorney General's office. While true that there was a request for the Attorney General's office to look into the case, the NC Bar Association apparently had opened the case against D.A. Nifong slightly more than two weeks after he became involved with the case. It's too bad it took so long to file the ethics charge, but sometimes the wheels just turn slowly.

J.R. Cassady

FWIW, from this link:

From the Civil Rights Jusridiction section:

728 28 U.S.C. § 1343(3). The cause of action to which this jurisdictional grant applies is 42 U.S.C. § 1983, making liable and subject to other redress any person who, acting under color of state law, deprives any person of any rights, privileges, or immunities secured by the Constitution and laws of the United States. For discussion of the history and development of these two statutes, see Monroe v. Pape, 365 U.S. 167 (1961); Lynch v. Household Finance Corp., 405 U.S. 538 (1972); Monell v. New York City Dep’t of Social Services, 436 U.S. 658 (1978), Chapman v. Houston Welfare Rights Org., 441 U.S. 600 (1979); Maine v. Thiboutot, 448 U.S. 1 (1980). Although the two statutes originally had the same wording in respect to “the Constitution and laws of the United States,” when the substantive and jurisdictional aspects were separated and codified, § 1983 retained the all-inclusive “laws” provision, while § 1343(3) read “any Act of Congress providing for equal rights.” The Court has interpreted the language of the two statutes literally, so that while claims under laws of the United States need not relate to equal rights but may encompass welfare and regulatory laws, Maine v. Thiboutot; but see Middlesex County Sewerage Auth. v. National Sea Clammers Assn., 453 U.S. 1 (1981), such suits if they do not spring from an act providing for equal rights may not be brought under § 1343(3). Chapman v. Houston Welfare Rights Org., supra. This was important when there was a jurisdictional amount provision in the federal question statute, but is of little significance today.

I added the bold. Seems to me that's the important bit, but I'm no lawyer :)

I wonder if the team could get class action status?

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