Posted on 01/15/2007 4:04:02 AM PST by abb
Published: Jan 15, 2007 12:30 AM Modified: Jan 15, 2007 06:10 AM
Nifong conduct rebuked early State Bar has letter from lawyer warning prosecutor of ethical violations
Durham District Attorney Mike Nifong, on MSNBC, shows how he said a woman was choked while being raped at a Duke lacrosse party.
Joseph Neff, Staff Writer In the first weeks of the Duke lacrosse case, Durham District Attorney Mike Nifong continued to disparage lacrosse players in public after a defense attorney had put him on notice that he was violating ethical rules governing the conduct of lawyers. The N.C. State Bar has charged Nifong with making improper statements to the media. The Bar is likely to use the letter from defense attorney Joseph B. Cheshire V as evidence that Nifong had been warned he was crossing ethical boundaries early on.
"Your reported comments have greatly prejudiced any court proceedings that may arise," Cheshire wrote on March 30, three days after Nifong began making public statements about the case.
"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, despite your knowledge of the presumption of innocence and your position as an officer of the court bound by the Rules of Professional Conduct related to pre-trial publicity."
The letter makes it more difficult for Nifong to argue that his remarks were off-the-cuff, said Thomas Metzloff, who teaches legal ethics at Duke Law School.
"That gets away from the spur of the moment defense, that 'I just went with it, I really didn't mean it, I was caught up in the emotion of the moment,' " Metzloff said.
The bar charged Nifong with violating a rule requiring prosecutors to "refrain from making extrajudicial comments that have a substantial likelihood of heightening public condemnation of the accused." The bar also charged Nifong with engaging in conduct involving dishonesty, fraud, deceit or misrepresentation and conduct prejudicial to the administration of justice.
Nifong brought charges of rape, sexual assault and kidnapping against three former lacrosse players: David Evans, 23; Collin Finnerty, 20; and Reade Seligmann, 20, saying they sexually assaulted a dancer from an escort agency during a March 13 team party. They have proclaimed their innocence and called the accusations lies. Nifong dropped the rape charges in December. On Friday, he asked the Attorney General's Office to take over the case.
Nifong goes public
Nifong made his first public statements on March 27, two weeks after the lacrosse party. "The circumstances of the rape indicated a deep racial motivation for some of the things that were done," Nifong told The Associated Press. "It makes a crime that is by its nature one of the most offensive and invasive even more so."
The woman is black; the accused players are white.
"We're talking about a situation where had somebody spoken up and said, 'Wait a minute, we can't do this,' this incident might not have taken place," Nifong said to The News & Observer.
"The contempt that was shown for the victim, based on her race, was totally abhorrent," Nifong told ABC TV. "My guess is that some of this stonewall of silence that we had seen may tend to crumble once charges start to come out."
The case instantly became a national and international story, with dozens of television trucks flocking around Duke and the Durham courthouse. Nifong estimated he gave 50 to 70 interviews in that first week. He called the players hooligans and said that "Duke students' daddies could buy them expensive lawyers."
The barrage of publicity was too much for Cheshire, who represents Evans.
Cheshire wrote in his letter that on March 29, he had his paralegal, Moira Bitzenhofer, call Nifong's office to set up a meeting so the defense lawyer could talk to the prosecutor either in person or on the phone. Nifong, through his assistant, Sheila Eason, declined to talk with Cheshire.
Cheshire wrote a strongly worded response and faxed it to Nifong at 3:42 p.m. on March 30.
"You and I have known each other for a long time, and I do not mind telling you I was amazed at that response," Cheshire wrote. "In 33 years, I have never seen such a request denied by a prosecutor, nor in such a manner. Your responsive comments, reported to Ms. Bitzenhofer by Ms. Eason verbatim, seemed to suggest I should call the Durham Police Department and have my client charged with a crime before you would have a conversation with me on a topic you have demonstrated no reluctance to discuss with myriad local and national news reporters over the last several days."
Cheshire went on to list some of Nifong's comments, as reported by The New York Times, WRAL and The News & Observer.
Cheshire said he didn't understand how Nifong could refuse to meet with a lawyer for one of the men the prosecutor had condemned in public. Nifong had essentially announced to the world that dozens of people were guilty of committing or aiding a racially motivated gang-rape, Cheshire wrote. And he wrongly proclaimed that the players wouldn't cooperate with police, when the truth was that three captains had voluntarily given interviews and their DNA to police, without consulting a lawyer.
"In addition to being patently false, your comments about the failure of anyone under suspicion to speak to law enforcement represent the type of negative comments on the exercise of Fifth Amendment rights that you would never be able to get away with in a courtroom."
Cheshire concluded that Nifong had left him and other defense lawyers no choice but to defend their presumed innocent clients in the media: "Sadly and unfortunately, that has created an atmosphere of trying these matters in the media, rather than a court of law, and that could have -- and should have -- been avoided."
Primary campaign
The day after receiving Cheshire's letter, Nifong appeared on MSNBC and demonstrated how the accuser had struggled to breathe while she was being choked during the alleged rape. He told The N&O he was certain a sexual assault had occurred at the house. And he continued to discuss the case as he campaigned to win the Democratic primary in the district attorney's race.
"The reason that I took this case is because this case says something about Durham that I'm not going to let be said," Nifong said at an election forum on April 12. "I'm not going to allow Durham's view in the minds of the world to be a bunch of lacrosse players at Duke raping a black girl from Durham."
Nifong has made few public comments after winning the primary May 2.
Even though he has recused himself from the case, he may face more charges from the Bar.
The Grievance Committee of the State Bar is meeting later this week and may add more charges against Nifong, Metzloff said.
The most likely charges would concern Nifong's withholding of DNA evidence favorable to the defense, Metzloff said. The director of a private laboratory testified that he and Nifong agreed not to report that tests had found DNA from unidentified men in and on the accuser.
"It's likely, but not a sure thing," Metzloff said. "It's likely they might want the judge to start things off."
In North Carolina, trial judges can punish or sanction lawyers for legal misconduct in a case.
Superior Court Judge W. Osmond Smith III, the trial judge, can find Nifong in contempt of court, but he can't disbar him.
"In some ways, the judge is better able to assess Nifong's alleged misstatements and the withheld evidence," Metzloff said.
Staff writer Joseph Neff can be reached at 829-4516 or jneff@newsobserver.com.
Ping
NandO
Nifong Made Call Too Late
by Ruth Sheehan
Here's something I was beginning to think I'd NEVER say about Durham District Attorney Mike Nifong:
He did the right thing.
By turning over the miserable Duke lacrosse case to the Attorney General's office for handling by a special prosecutor, he did the right thing.
But he did so more than seven months later than he should have.
And here's a stunner: He did it to save his own hide.
Let's review, in brief.
Nifong used the case to win an election.
He refused to meet defense attorneys, including one who appears to have solid proof that his client was elsewhere when the alleged assault (in the original version) took place.
He appears to have tried to withhold evidence.
And the first time his office met with the accuser was this month. (Producing a whole new version of events -- argh!)
But when Nifong finally decided to turn over the case to the special prosecutor (something some of us have been calling for since June), it wasn't an acknowledgment of any mistakes or misdeeds.
Nope. He was feeling heat from the State Bar, and a chorus of fellow DAs, regarding alleged ethical violations. (Finally, we might see the wussy Bar take some action against a prosecutor. Stay tuned.)
So forgive us, Mike, if we don't stand up and applaud.
Unfortunately, Nifong is only the first on a playlist of unappealing characters and bad actors in this case.
There are the investigators who at the very least appear to have gone along with Nifong's efforts to mold this case.
There are the accused, young men who I believe are innocent of the crimes with which they are charged but whose peer group's behavior on the night in question was appalling. Ye shall be known by the company you keep. I know -- I work with journalists, and I'm married to a politician.
Strippers and racial slurs?
If I found out one of my sons was involved in such a scene, I'd jerk a knot in his neck.
Their parents, in an interview with CBS' "60 Minutes" Sunday night, bristled, justifiably, with fury at the treatment of their sons.
But one came off as mighty arrogant as well. Nifong messed with the "wrong families" indeed.
There is the accuser, who can't seem to get her story straight.
She will never be punished sufficiently if her allegations are as bogus as they appear.
Some observers of this case are turning their blood lust on this case to Duke President Richard Brodhead. Watch out, Dick.
And, of course, there are the 88 Duke professors who came out so forcefully against the accused.
Even in the face of powerful evidence that the attack did not occur as originally described, a number of them have not retreated, much to the outrage of the blogosphere.
So, any good guys?
Let's see.
There's Elmo, the cab driver whose testimony cleared Reade Seligmann in the accuser's first version of events.
Oh, and the accuser's newborn baby who, it's safe to say, will never play Duke lacrosse.
NandO
Players' Parents Rip into Nifong
by Michael Biesecker
The parents of the three Duke lacrosse players charged with sexually assaulting an escort service dancer appeared together on national television Sunday night, lashing out at District Attorney Mike Nifong and proclaiming their sons' innocence.
In an interview with Lesley Stahl of "60 minutes" -- taped last week before Nifong withdrew from the case Friday -- the mother of Reade Seligmann described what it was like to hear that her son was to be charged with rape.
"You feel like someone hit you with a baseball bat," Kathy Seligmann said. "My son said, 'Mom, when is this going to stop? When is this insanity going to stop?' knowing he was still being charged with crimes he didn't do. It's crazy. It didn't happen. ... Our families have been held hostage of this DA, of this woman, of this police department. We don't know what our futures hold. Our children don't know what our futures hold."
Rae Evans, the mother of David Evans, said Nifong charged her son and the others to help win support in the May 2 Democratic Party primary.
"You have to remember that this has never been about the evidence. Never," Rae Evans said. "If it were about the evidence, nine months ago this case would have been totally dropped. This is about a man who chose to use a troubled young woman's story of fantastic lies to advance his own political career, which was crumbling. He needed something big. He needed that magic bullet. And he shot it at our sons."
Asked by Stahl what she would say to Nifong if he walked into the room, Evans responded that she would face him with a smile on her face. "Mr. Nifong, you've picked on the wrong families," she said. "And you will pay every day for the rest of your life."
Herald-Sun
Bell:City showed 'true grit' in 2006
by William F. West
Durham Mayor Bill Bell spoke out Sunday on the Duke lacrosse case, expressing compassion for the parents of the three players accused of sexual assault and kidnapping, and saying he believed university President Richard Brodhead and the city have handled the situation well.
"This was an incident that produced a lot of Monday morning quarterbacks," Bell said in remarks at Duke University's 18th annual Martin Luther King Jr. celebration service.
Speaking to a mass audience at Duke Chapel, the mayor said he believed the ceremony honoring the late civil-rights leader was an appropriate time to comment on the lacrosse situation.
Bell was quick to show his support for Brodhead, saying, "In my opinion, he has made the right decisions at the right time, given the information that he had."
David Evans, Collin Finnerty and Reade Seligmann remain charged with kidnapping and sexual assaulting an exotic dancer at a March 2006 lacrosse team party. The three men have strongly maintained their innocence.
Brodhead became a target of much criticism after canceling the nationally ranked lacrosse team's 2006 season, while others praised him for showing restraint about the criminal cases.
Brodhead started speaking up after the rape charges against Evans, Finnerty and Seligmann were dropped last month.
He called for Durham District Attorney Mike Nifong to step aside as the prosecutor and added that Nifong needed to explain his conduct.
On Friday, Nifong recused himself after weeks of increasing criticism for his alleged mishandling of the probe, including allegedly inflammatory public remarks after the incident, as well as the accuser's constantly changing stories. State Attorney General Roy Cooper on Saturday announced he would turn the probe over to a pair of his veteran prosecutors.
Although Bell didn't speak Sunday about Nifong's handling of the case or the specifics of the accusations and the denials, he emphasized the need for a fair process.
He said that "in our system of justice, a person is presumed innocent until proven otherwise" and "empathized" for the parents involved on both sides.
Bell went on to use the theme of Sunday's event at Duke Chapel, "Come to the Table," to support his belief that Durham is a city that prides itself on racial diversity. At the same, he did rebut critics who believe the city's demographics are a sign of racism.
"Don't get me wrong," he said. "We have our differences. But in Durham, we struggle openly, in a healthy microcosm of citizenship and democracy."
Bell said he reflected on the trials and tribulations of last year in Durham and believed the city faced the challenges and controversies and showed "true grit" in doing so.
Bell, emphasizing King's message of unity, said that regardless of one's attitude, economic class, education, lifestyle, sexual preference or spiritual practices, "You have a home in Durham."
Durham, he said, is a community that "works openly, pinpoints its problems and finds workable solutions" and is a community that "comes to the table."
"I think he's absolutely right that we have to come together in what we do and how we solve our problems," said Dennis Woods of Raleigh, a computer technician.
Gerard A. Morrison of Raleigh, who works in job development, also said he believed Bell's remarks were timely.
But Morrison added, "I think that was a barometer of the temperature of what's going on in America right now, too -- the same with the O.J. [Simpson] case, the same with this."
From Duke Basketball Report:
60 Minutes Eviscerates Nifong, Again 1/15/2007
The previous 60 Minutes piece on the Duke lacrosse case was hard-hitting, but Sunday's was devastating to Mike Nifong and the case he built.
Among the new information revealed:
Brian Meehan, of DNA Security, made it clear that there was no question that Nifong absolutely understood there was exculpatory evidence, saying that he told the prosecutor about the lack of DNA from any lacrosse players, and the DNA found from other men. Nifong is obliged under state law to turn over exculpatory evidence.
The alleged victim (AV) has more extensive psychological problems than has been previously revealed.
The parents of the accused lacrosse players are infuriated and are clearly considering ways to punish Mike Nifong for what they believe to be outrageous abuses.
Duke's James Coleman believes Nifong may have committed obstruction of justice.
President Brodhead was briefly interviewed. He defended the cancellation of the lacrosse season last spring, arguing that with such a cloud over the program that it was not the time to take the field (the same argument he made at the time). He also defended Duke's decision to invite Reade Seligmann and Colin Finnerty back to school, an offer their parents suggested they weren't sure it was wise to accept, given Nifong's re-election and the treatment Durham police have given Duke students.
For Duke, the episode was, to borrow a phrase, a social disaster. It wasn't any better for Durham or the state of North Carolina.
After the lacrosse case, the faked lead tests, the burning landfill, the various police shenanigans, Durham's reputation has taken a major hit.
North Carolina's judicial system has had a harsh light shone on it, and what it's shown is not pretty: a prosecutor pursuing conviction at all costs and utterly disregarding any evidence contrary to his goal.
The case has become a significant controversy in the state, with members of the legislature suggesting that the state take over supervision of prosecutors (currently the bar handles it).
It may well be a wildcard election issue in the state in 2008, with no way to predict its impact.
For Duke, it's going to be an ongoing problem. Brodhead is in a difficult position, because no matter what he does, he's going to offend various constituencies. We can empathize. A modern university is to a certain extent anarchic, and no president, no matter how smart, strong, or capable, can truly be said to run it, other than fundraising and planning facilities or programs. Brodhead cannot control the faculty, nor, generally speaking should he try, except in exceptional circumstances.
But the entire enterprise rests on consistently recruiting new students, and for parents who may not be familiar with Duke, or Durham, the 60 Minutes piece certainly forms a frightening image of what is, basically, a very nice town, albeit a town with issues. Duke has a lot to overcome as a result of this case.
One thing which Brodhead could do, it seems to us, which everyone should agree with, is to make it clear to the city of Durham that Duke students must be treated the same as any other citizens and that Duke will not tolerate any further mistreatment of its students. Certainly parents of students (present and prospective) would wish this to be so.
In the extraordinary, this refers to the defendants in the lacrosse case, who have been handy pinyatas for Nifong to blindly smack around and to knock goodies out of for his various constituencies.
But in a broader sense, Durham police have quite frankly discriminated against Duke students as a class, which is a violation of their civil rights. In particular, Sgt. Mark Gottlieb has arrested a significantly higher number of Duke students than his peers, with some students reporting threats and violence.
Brodhead, like any university president, has limited control over his faculty, and for good reason. But he can certainly address the way the city of Durham and the state of North Carolina have treated Duke students. He has a number of options, from simply advocating for reform, to threatening to limit Duke's cooperation with the city on a number of things, to withholding taxes in protest, to suing the city for violating the civil rights of Duke students.
There is a wide gap between Duke and Durham, as this case has made painfully clear. And as Professor James Coleman has made clear, if you can do what Nifong did to rich people, it's ten times easier to do it to poor ones. Brodhead has an opportunity to let Duke serve Durham, and to build bridges, by having Duke help keep the justice system honest. Perhaps law students could organize themselves and monitor the district attorney's office for any further abuses, particularly against people who can't fight back as the lacrosse families have done.
He could, when the time is right, even advocate for major reform in the state system of justice. Reform is long overdue, and would be one of the few positives to come out of this whole mess. It would give Duke a chance to show some leadership on a very important issue, and given the level of attention the case has drawn, someone needs to step up and address the need for reform.
That would be an impressive legacy for any university president.
http://www.heraldsun.com/opinion/hsletters/
Grand jury reform
The accuser in the Duke lacrosse case used sex to assault the members of the team. Everybody knows the extensive damage that she has caused. However, other than the minor crime of filing a false police report, she has done nothing wrong. She is free to assault another victim. If she had not been caught by very expensive attorneys, she would have received millions in civil suits. She could use her children to attack a victim and it would be legal. If they attacked a teacher and instituted a lawsuit against the school, the taxpayers would have to pay it. The laws should be changed from no crime at all to a felony. If this is difficult to believe call your representative with the North Carolina State Legislature.
The Jan. 10 column by Beth Brewer about reforming the grand jury was on the right track. Leaders in Durham should form a committee or task force to examine what should be done to prevent other lacrosse cases. This will make Durham a respected leader because we did something about it.
Reforming the grand jury, admitting lie detectors in court in "he says/she says" cases, and making verbal sexual assaults a felony, are some of the things they should consider. The community and victim advocates can help with more recommendations.
Winston Hall
Durham
January 15, 2007
Insight into LAX case
Although some letters from Durham residents express resentment that many critical letters about the Duke/Nifong activity come from outsiders, I have just received a response from a respected friend in a major city to whom I sent The Herald-Sun editorial of Jan. 11 ("Duke hopefuls see beyond lacrosse").
His comments bring a broader insight about the affair:
"All towns and cities have their problems that go along with their many advantages. But I think that the smaller the locale, the greater the focus and emphasis on what purported illegal activity occurs there and how it's handled. (And how it affects a major university there, like Duke.) If, for example, three Duke students had raped a woman and there was clear evidence to this effect, it probably would have made the national news one day and then disappeared. A crime had been committed, and crimes are committed everywhere, so its being properly handled would have been the end of the story.
"But what makes this case stand out and why it continues to stay in the news is how this case has been mishandled from the beginning, how students have been charged without evidence, and how the DA has acted poorly at every turn (obviously to help his election).
"As such, Durham's DA, Mike Nifong and Duke President Richard Brodhead are to blame for Durham's extensive negative publicity. Durham should learn from Pogo who said, 'We have met the enemy, and he is us.' "
J.A. Davis
Chapel Hill
January 15, 2007
http://www.newsday.com/news/local/longisla...inews-headlines
Parents talk of Duke case
BY JENNIFER BARRIOS
Newsday Staff Writer
January 15, 2007
The parents of three Duke lacrosse players accused of sexually assaulting an exotic dancer last March spoke out last night on CBS News' "60 Minutes," a day after the prosecutor stepped down from the case.
Meanwhile, the forensic expert hired by the prosecution admitted to "60 Minutes" that he should have included in his report that he found evidence of DNA from several men on the dancer - but none from the three accused men.
"Certainly, it was a big error," said Brian Meehan, who was hired by Durham County District Attorney Mike Nifong to conduct testing on the evidence.
According to a transcript of the segment provided by "60 Minutes," Meehan said he told Nifong about the evidence from the other men, but Nifong agreed that only evidence that would point to the three lacrosse players should be included in the report.
snip
http://www.latimes.com/news/printedition/a...-news-a_section
For the Record
January 15, 2007
Duke case: An article in Saturday's Section A said a second exotic dancer in the Duke University sexual assault case told police that lacrosse players shouted racial slurs during and after a team party where she and the accuser in the case performed. In fact, she said the slurs came only as she left the party. It was the accuser who told police the players used racial slurs as the two women danced.
It seems that NiDONG, democrat N.C. is a typical lib Sociopath. Anything for re-election.
The fact that she had DNA from multiple men not at the party strongly indicates there was probably a conspiracy to commit fraud on part of this woman and her boyfriend(s).
--oops...--
(from the article) Nifong told ABC TV. "My guess is that some of this stonewall of silence that we had seen may tend to crumble once charges start to come out."
OOPS!!!!!!!!
ETHICAL VIOLATIONS?????!!!! Hell, what did and continues to do is downright criminal. If you or I did these things, we sould be before a judge and jury. This guy belongs in jail. He needs to be held to the same standards and laws that we are. What does it take to get a corrupt politician indicted?
But Nifong would and did meet with members of the New Black Panthers.
Duke did not do right. What they did was NOT deal with the situation as it was. They fueled the lie that the boys were "guilty" just so their campus wouldn't get trashed by the usual "we are the world" mobs. Duke sacrificed fairness and honor on the "reality" alter of saving themselves.
The Duke Gang of 88 exposed how elated and excited they were to have an "opportunity" to present their wares: their wares of racism, classism, and elitist marxist snobbery.
I shudder at the thought of these liberal universities with their liberal students monitoring anything other than the cafeterias.
I'm thinking it's beyond the "oops" stage. It's even beyond the "aw sh*t" stage. It's now "omigod."
I agree with this. Although I can imagine how hard this experience has been for the families, they still need to control their comments to public. We're having a war image here. Lets not give opportunity to Nifong and his like to muddle the water with what could be construed as class issue: because the families are rich, this should be an important case. This is the kind of image that Nifong has tried hard to put in public.
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