Quest to convict hid a lack of evidence (The Fong's Obituary)

Quest to convict hid a lack of evidence The district attorney moved quickly to take over the lacrosse inquiry. An N&O review shows that once he accepted the accuser's story, little else mattered

Joseph Neff, Staff Writer DURHAM - Mike Nifong found out about the case that now threatens his career March 23, 2006, when he stopped by the office copier and found a court order demanding DNA samples from 46 Duke lacrosse players. An escort service dancer told police that three men at a team party had dragged her into a bathroom and raped her anally, vaginally and orally for 30 minutes, according to the order. The Durham district attorney's reaction, he later told lawyer Jim Cooney: "Holy crap, what is going on?"

The next day, Nifong told Durham police he was taking over. At 9 a.m. March 24, a police captain told the senior investigator, Sgt. Mark Gottlieb, that "Nifong was going to be running and prosecuting this case. ... Go through Mr. Nifong for any directions as to how to conduct matters in this case."

It was an unusual move for a prosecutor, but there's no evidence that the police challenged him. The case, however, was already in trouble.

The 27-year-old complainant, Crystal Gail Mangum, couldn't identify her alleged attackers. She had given at least six conflicting accounts. And the first officer who encountered her didn't believe her story.

Nifong forged ahead in what became a single-minded quest to support the accuser's account, not a mission to discover the truth. His pursuit ended in January when the district attorney, facing charges from the State Bar, removed himself from the case.

The final collapse came Wednesday, when Attorney General Roy Cooper dropped all charges and declared Dave Evans, Collin Finnerty and Reade Seligmann innocent.

A News & Observer examination of Nifong's handling of the case, based on documents and dozens of interviews, adds new insights about the investigation's focus on shoring up Mangum's claims. Nifong ignored contrary facts, withheld evidence favorable to the accused and refused to discuss the case with defense lawyers.

His lead investigator, Linwood Wilson, pressured witnesses and produced different timelines and accounts to support Mangum's shifting statements.

There is no evidence that Nifong or any investigator challenged Mangum to explain the contradictions in her versions of what happened at 610 N. Buchanan Blvd. Nor did they speak with the doctor who conducted the pelvic examination hours after Mangum said she had been raped.

Baffling those who knew him along with the millions of people around the world who came to know his name, Nifong stuck with Mangum's stories. As he fought to win the Democratic nomination for district attorney, he made a series of decisions and inflammatory statements that propelled the case into an international scandal. It turned three college students into criminal suspects and brought scorn on Durham, Duke and almost every other institution involved.

Nifong, who has made few public statements since last spring, declined to be interviewed for this report.

In March of last year, few people outside the Durham courthouse had heard of Mike Nifong.

He was a career civil servant; prosecuting had been his only job since graduating from law school in 1978. A conscientious objector in the Vietnam War, he had boasted about a career of high ethics.

Nifong had a reputation as a sharp lawyer but was also known as abrasive, vindictive and prone to volcanic tantrums. He hadn't tried a serious felony case since 1999, when he was diagnosed with prostate cancer. A new district attorney, he had never dealt with the swarms of reporters who descend on a major story.

By the time Nifong took the documents off the copier March 23, Durham police were having trouble with the case.

Mangum, a mother of two, worked for several escort agencies and danced at a Hillsborough strip club. She said three men had pulled her into a small, tiled bathroom and assaulted her.

Sgt. John Shelton, the first officer who saw Mangum after the party, doubted her story. After talking with her in the Duke Hospital emergency room, he loudly announced, "I think she is lying."

Later, police showed Mangum photographs of 36 lacrosse players. She looked at more than three-quarters of the team but couldn't identify any players as her assailants.

If Mangum couldn't make an identification, forensic science could. Mangum said that her attackers did not wear condoms and that one and perhaps all three had ejaculated. A crime lab could identify attackers from the DNA in any semen, blood or hair left during a 30-minute attack.

On March 27, a Durham police investigator, Angela Ashby, drove to the State Bureau of Investigation laboratory in Raleigh and hand-delivered the DNA evidence, which can provide a direct, unchallenged link to a suspect. She handed over swabs that an emergency room doctor took from Mangum's body March 14, a few hours after the party.

Lab technicians would scrutinize the samples for semen, blood and saliva, and then see whether the DNA matched any of the swabs taken from the mouths of the 46 players. Nifong asked the lab to move the samples to the front of the line.

On the same day, Nifong started a media offensive. The News & Observer had broken the story of the team giving DNA samples and then published an interview with Mangum. Activists and neighborhood residents had responded with two protests outside the house where three lacrosse captains lived: a candlelight vigil and a raucous affair where protesters banged pots and held signs that read "Castrate" and "Get a Conscience, Not a Lawyer."

Nifong gave scores of interviews to television and newspaper reporters who called or showed up at his office. The coverage worried Bob Ekstrand, a Durham lawyer who represented dozens of team members. Ekstrand set up an appointment with Nifong on March 27.

The meeting started cordially. Ekstrand said he asked Nifong how he would make decisions. He urged the prosecutor not to do anything until the DNA test results came back.

Nifong ended the meeting abruptly. Ekstrand recalled Nifong's parting words: "If you've come here to ask me questions instead of telling me what you know about who did it, then we don't have anything to talk about. You're wasting my time. You tell all of your clients I will remember their lack of cooperation at sentencing. I hope you know if they didn't do it, they are all aiders and abettors, and that carries the same punishment as rape."

As he left, Ekstrand noticed several reporters milling in the hall outside Nifong's office.

Jackie Brown was at her vacation home on North Topsail Beach in late March when Nifong called, she said in an interview. Brown, a political insider who worked many election campaigns in Durham, had agreed to run his campaign.

Brown was surprised: "I said, 'Hold it, do you have any idea what this could do to your campaign, good or bad?' He said no."

Brown told Nifong to keep quiet until they figured out how it would affect the election. She hung up the phone and turned on the television. As Brown channel surfed that evening, she saw her candidate on local news. She watched him on Fox News, her favorite network, and another national show. Brown tried calling Nifong on his cell phone and at his office, but he wasn't answering.

At dawn the next morning, Brown and her miniature dachshund, Daffany, headed back to Durham. She wanted to talk with her candidate.

This campaign had been unusual from the start. In April 2005, Nifong had been appointed by Gov. Mike Easley to fill Jim Hardin's unexpired term. Easley has said Nifong promised not to run for election. But he did, and he had strong opposition from former Assistant District Attorney Freda Black in the May primary.

When Nifong called Brown in the fall of 2005, looking for a campaign manager, Brown had never heard of the prosecutor. This was unusual for an insider who's well-connected with Durham's political organizations.

Brown agreed to meet him for lunch Jan. 2, 2006, at the downtown Marriott near the courthouse. Nifong showed up with his wife, Cy Gurney. As the women ate Caesar salads and Nifong tended to a steak sandwich, Gurney did most of the talking. Brown was struck by the first words out of Nifong's mouth.

"He said, 'I really don't want this job; I was the last one on the list. I just need three years and seven months for retirement. You won't have to worry about running another campaign for me.' "

Brown was taken aback: Did Nifong, then 55, really want to go through the hassle of a campaign? "He said, 'I know nothing about politics. That's why I need you to be campaign manager.' "

Four more years would make a big difference for Nifong's retirement. If he served five years as a district attorney, his 29 years as a regular state employee would apply to the more lucrative retirement plan for a district attorney; overnight, in April 2010, his annual pension would increase by at least $15,000 a year.

Brown signed on, with no idea that the political neophyte would become one of the nation's most famous prosecutors.

When Brown drove back from the beach, she found satellite trucks crowding the courthouse parking lot. Reporters and camera crews roamed the sixth-floor hallway outside Nifong's office, looking for an interview.

Nifong obliged, declaring that the rape was racially motivated. He ripped into the lacrosse players in an interview with The N&O: "I would like to think that somebody who was not in the bathroom has the human decency to call up and say, 'What am I doing covering up for a bunch of hooligans?' "

Seeing the crowd, Brown retreated to a corner and called Nifong several times on his cell phone, she said. No answer.

When Nifong left his office to go to the men's room, Brown maneuvered him into a corner so her back was to the cameras.

The television reporters had asked that he turn off the cell phone so it wouldn't ring during interviews, Nifong said.

"I said, 'You don't have any idea what the impact is going to be on your campaign.' He said, 'I'm getting a million dollars of free advertisements.'

Staff writer Joseph Neff can be reached at 829-4516 or joseph.neff@newsobserver.com.

Well IF this story is correct, I am still left with many question:

1. First I say IF because almost everyone, from the DPD officers who might face crminal liability to all the ADA who might face ethics charges, involved in this case now has an incentive lie and shift blame. So I am highly sketpical about details in this article.

2. Neff completely ignors the most important question. That is how did we go from Sgt Shelton recognizing that he was dealing with a likely lying hooker avoiding involuntary commitment to requesting a blanket order for 46 respectable people to give DNA swabs?

3. If Nifong really first heard about the case when he saw the order at the copy machine, then who pushed it past Sgt. Shelton’s initial correct view of the complaint? Did someone with a political agenda take over a DPD police investigation? Does DPD essentially have a rape Nazi pushing forward cases and wasting appropriated funds no matter how suspect the claim of rape is? Or maybe this is Mangum’s family political connections much speculated on here driving this?

4. BTW, is it reasonable given everything we have learned about Nifong and his personality to believe that Nifong EVER goes to the copier himself? Doesn’t he strike us more of the type that would yell at and order a secretary or even a junior ADA to do his copying?

5. Given the large amount of money that a DNA test costs, is it really believable that Nifong did not ok the request for the nontestimonial order? I know there was much discussion of expense of a second more complicated set of tests at Meehan’s lab. But maybe this is the DPD worry since at that point Nifong was not running the investigation.

So there we have it, the News and Observer missing the real story as usual.

The entire post. Lots of very good information contained here:

http://z9.invisionfree.com/LieStoppers_Board/index.php?showtopic=3047&st=50

JimCooney Posted: Apr 14 2007, 02:01 PM

Newbie

Group: Members
Posts: 3
Member No.: 949
Joined: 13-April 07

Thanks for the many kind notes and thoughts. They are appreciated but I also want to make clear that I was a member of a great team and that this result was of a number of great lawyers. I am happy to answer many of these questions, but please do not interpret these answers as any attempt to take credit for what was a joint effort by attorneys that I am humbled to be associated with.

First, the most important answer: Yes, Brad is single and he is taking applications.

Second, we did believe that we were going to prevail at the February 5th hearing. Through the efforts of Doug Kingsbery, we had the leading experts in the country prepared to testify about the “pin the tail on the donkey” line-up created by Nifong. Our hand was strengthened when Linwood Wilson, during the course of the December 21st “interview” with Precious, showed her the same line-up again (apparently so that she could learn their names).

While we would have all welcomed a dismissal at the 2/5 hearing, it would not have been an exoneration. Those who wanted to believe Precious would have claimed that the case was dismissed on a technicality created by high-priced lawyers. Consequently, when Nifong removed himself from the case and turned it over to the AG, we made a considered (and roundly criticized) decision to agree to a lengthy delay until May 7th. We did so because we believed that honest prosecutors, after examining this evidence and what we were able to provide to them, would not only dismiss the case but would do so in terms that would make it clear that our boys were innocent. This was obviously a calculated risk, but ultimately we were confident in the innocence of our clients, in the strength of our evidence, and in the integrity of Jim Coman and Mary Winstead.

By the end of the Special Prosecutors’ investigation, we had no more secrets - - they literally had seen every piece of evidence that we had and they knew what a trial would look like. Some of this evidence is under seal and cannot be discussed; much of it is still not known to the public. However, I think it is fair to say that our case was even stronger than what the public knew. We made the decision to share not only everything that we were required to share, but to share everything that we had because we wanted to achieve not just a dismissal, but an exoneration. While there was risk to this, in the end no matter what happened the basic fact was not going to change: these boys were innocent.

Bill Anderson, however, has made an excellent point - - there was nothing inevitable about this result. At any point in the process, this case could have taken a different turn or twist and we could have easily found ourselves trying it in a courtroom. While I firmly believe that we would have mopped the floor with Nifong (or anyone else crazy enough to try this case), anytime a case goes to a jury there is risk. Even a hung jury would have been devastating to these young men - - we simply made the gamble that we needed to go for more than dismissal, we needed exoneration.

Fortunately, we were dealing with tough,fair and principled prosecutors in the AG’s office. As Wade Smith said so brilliantly, Roy Cooper, Jim Coman and Mary Winstead are everything that Mike Nifong is not. While there was considerable angst in the blogosphere, we had confidence in their integrity.

The defense teams kept in constant real time communication. We had an email network set up and Brad and I talked with each other several times a day, seven days per week. Indeed, my wife, who has never met Brad, sees him as competition for my affection. Shortly after I joined the team, we had a 2 day retreat in which we “war gamed” the case and ultimately designed the “end game” strategy that played itself out in our filings in December and January. Each person to the team brough a different strength and we had remarkable leadership.

This said, there is one member of the team that has gone unmentioned: you Blog Hooligans. I reviewed the Boards everyday not only for the latest commentary, but also because you did an excellent job of rounding up the media reports (which saved me time) and for the analysis that I saw play out. Many of the posts and observations were critical as I drafted the Motion for Change of Venue; the hyperlinks to original source material helped me reconstruct the incredibly inflammatory coverage of this case as well as the many cowardly acts that were taken against these young men that are detailed in the Motion.

One incident in particular stands out. In January, we filed a Supplement to the Motion to Suppress dealing with Precious’ December 21st statement to Linwood Wilson. In it, she claimed that the picture that showed her at the house after 1230 am, was in fact a picture of her going into the house. In the Motion we held back on 2 facts that proved this was not true. The first was that the picture actually shows her holding Dave Evans’ shaving kit; a fact not publicly known (at least until now). The second was that the picture taken just before it, shows her with one shoe. Brad and I knew that Nifong and Wilson had missed this and that we could use it at the hearing to show what a liar Precious was. However, not 12 hours after filing the Motion, someone on this Board had posted the picture and pointed out that she was only wearing one shoe. I remember thinking “Damn, these guys are good.”

In the end, the central fact of this case was that our boys were, and always will be, innocent. No matter how much Nifong smirked about his evidence, or how much Linwood Wilson tried to intimidate witnesses or change Precious’ stories, they could not change that single fact. We always knew that there was no smoking gun because there was no crime; anything they came up with was destined to be wrong and untrue. This was a huge comfort as we went through this case. To paraphrase Dave Evans, they were as innocent on every day of this prosecution as they were on the first and last days.

Finally, the Seligmanns, and particularly Kathy, read this blog regularly and have appreciated the support and outrage that has been shown. During a difficult time for them, they found a great deal of comfort from the comments on this Board.

Jim Cooney

PS - - Joe Cheshire really liked Tony Soprano’s videos.

Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.