The D.A. Scandal in the Duke University Case

Michael B. Nifong's Violation of the North Carolina Rules of Professional Conduct(1)

By Henry H. Korn, Esq., partner, LePatner & Associates LLP, former Assistant U.S. Attorney, Southern District of New York, and former Member, Departmental Disciplinary Committee for the First Judicial Department.

April 2006 marked the beginning of the nightmare for three members of the Duke University men's lacrosse team when the Durham County District Attorney, Michael B. Nifong, charged them with raping a stripper at a lacrosse team party. The charges were filed even though Mr. Nifong never interviewed the victim.

He was quick to comment during this prosecution, however, that the defendants were guilty of the rape. Reviled by faculty and senior administrators at Duke who had prejudged them (and all members of the nationally ranked lacrosse team) and by the news media that escalated the feeding frenzy,(2) these three men faced the dark and dirty side of the criminal justice system, or what Norman Mailer once described as "the belly of the beast."(3).

As events unfolded, these men watched the case brought by Mr. Nifong unravel. The victim simply could not keep her story straight, only lately admitting that one of the defendants did not rape her. Although the DNA laboratory findings ultimately exonerated the men from any rape charge, in the initial report produced to defense counsel, Mr. Nifong chose to withhold the exculpatory evidence from the defendants. Their DNA, we learned in late December 2006, simply was not present on the person or property of the victim, while DNA from other men was present.

It has also been reported that the photo identification was so seriously flawed that any in-court identification by the victim might be thrown out. We learned that Mr. Nifong did not meet the victim to assess her story against the evidence and never agreed to hear or review the defendants' evidence, although requested to do so by counsel. Additionally, we learned that Mr. Nifong, who was running for re-election as county prosecutor, held numerous press conferences and made highly disparaging remarks about the defendants, describing them as "hooligans" whose "daddies could buy them expensive lawyers." It has been reported in fact that Mr. Nifong, by his own account, gave 50 to 70 interviews in a one-week period.

On December 22, 2006 Mr. Nifong dropped the rape charges against the defendants and subsequently on January 12, 2007 his request to resign was accepted by the State Attorney General.

The case also unraveled because Mr. Nifong cavalierly violated the North Carolina Rules of Professional Conduct (the "Bar Rules"). Mr. Nifong chose what to disclose. For example, the DNA report given to Mr. Nifong by the DNA lab shortly after the indictment was filed - and turned over to the defense attorneys as required by North Carolina law - omitted exculpatory evidence that proved the DNA samples found on the person and underwear of the victim were from other men and that that none of the genetic material matched any of the defendants or any other lacrosse player.

Mr. Nifong conducted this investigation with such disregard for the code of professional responsibility governing the conduct of a prosecutor in North Carolina that on December 28, 2006, the North Carolina Bar filed ethics charges against him, accusing him of making public statements that were "prejudicial to the administration of justice" and of engaging in "conduct involving dishonesty, fraud, deceit, or misrepresentation."(4)

The initial complaint identified scores of examples in its 181 separate numbered paragraphs of Mr. Nifong's disregard of the rules governing prosecuting attorney conduct. That complaint was superseded on January 24, 2007 by a complaint including over 100 additional numbered paragraphs specifying how Mr. Nifong withheld or failed to provide potentially exculpatory DNA evidence, lied to the Court and counsel and made false statements to the Grievance Committee after it sent him a notice of grievance and he responded.(5)

The complaint is replete with his direct quotes to the news media of untrue and misleading extrajudicial statements that the State Bar claims were calculated by him to prejudice the rights of the defendants. While making the statements he did to the news media, Mr. Nifong did not adhere to Bar Rule 3.6. That rule governs what a lawyer may say to the media concerning the litigation. Under Rule 3.6 the attorney is strictly admonished to limit statements to those contained in the charging instrument.

Despite the limitations within Rule 3.6, Mr. Nifong complained that "none of the lacrosse players were cooperating with the prosecution, stating "one would wonder why one needs an attorney if one was not charged and had not done anything wrong". As the complaint alleges these statements constituted "improper commentary on the lacrosse team members' alleged failure or refusal to make a statement to law enforcement authorities and upon the lacrosse team members' alleged invocation of their constitutional rights." (Complaint 43).

Mr. Nifong made comments to news media concerning the results of tests performed as part of the investigation, including the DNA tests that turned out were deliberately reported to conceal exculpatory evidence. (Complaint 54) Despite knowing, from a review of police reports, that the victim stated no condoms were used in the attack, Mr. Nifong suggested a reason why no DNA could be found linking the defendants to the victim by claiming that they used condoms. (Complaint 124)

Mr. Nifong commented to the news media that "I am convinced there was a rape, yes, sir." In so doing, he improperly asserted in extrajudicial remarks that they were guilty. (Complaint 76, 84)

Mr. Nifong commented on the defendants' exercise of their 5th Amendment rights telling the news media "[t]hey don't want to admit to the enormity of what they have done." (Complaint 103) He made these statements knowing defense counsel in fact had sought to meet him to present the evidence exonerating the defendants, but he declined to do so.(6)

Mr. Nifong referred to the defendants as a bunch of hooligans and complained that people might be covering up for the hooligans. (Complaint 137) By any construction of the Bar rules, this was improper commentary about the character, reputation and credibility of the accused men. (Complaint 140)

In the superseding complaint, the North Carolina Bar broadened the charges. The superseding complaint charges Mr. Nifong with failing to provide a complete report containing the results of the DNA tests that would exculpate the defendants, in violation of North Carolina Gen. Stat. 15A-282, 15A-903(a)(1) and 15A-903(a)(2) (Complaint 227).

In the superseding complaint, Mr. Nifong also was charged with misrepresentations and false statements to court and opposing counsel. (Complaint 230 et seq.) The complaint details scores of examples of his false statements and misrepresentations. According to the superseding complaint, he falsely stated "the State is not aware of any additional material or information which may be exculpatory in nature with respect to the Defendant." (Complaint 230) The complaint charges that he made false statements to the Court, as well; for example, at a May 18, 2006 hearing, the Court asked him if he had provided the defendants all the discovery materials and he stated "I've turned over everything I have." (Complaint 235)

Additionally, the superseding complaint charges that Mr. Nifong made "misrepresentations and false statements to the State Bar's Grievance Committee" beginning on December 20, 2006 when the Grievance Committee delivered its notice of grievance to him; the superseding complaint charges that his responses were false and misleading. For example, in his responsive letter he stated he did not realize that the potentially exculpatory DNA test results were not included in the lab reports from May 12 until he received a December 13 motion to compel discovery, and the Bar complaint charges that such statements were "knowingly false statements of material fact made in connection with a disciplinary matter." (Complaint 288)

The examples of such false and misleading statements to Court and counsel are set forth in the additional 100 numbered paragraphs in the superseding complaint. These new paragraphs charge that Mr. Nifong:

failed to make timely disclosure to the defense of all evidence or information required to be disclosed by applicable law, rules of procedure, or court opinions, including all evidence or information known to him that tended to negate the guilt of the accused in violation of Rule 3.8 (d); failed to disclose evidence or information that he knew, or reasonably should have known, was subject to disclosure under applicable law, rules of procedure or evidence, or court opinions in violation of Rule 3.4 (d) (3); intentionally limited the lab report to exclude potentially exculpatory evidence, and by doing so knowingly disobeyed the rules of the court in violation of Rule 3.4 (c), and further requested a person other than a client to refrain from voluntarily giving relevant information to another party in violation of Rule 3.4 (f); repeatedly misrepresented to the Court and counsel that he provided all potentially exculpatory evidence, violating Rule 3.3 (a) (1) and Rule 8.4 (c); made false statements of material fact or law to a tribunal and engaged in conduct involving dishonesty, fraud, deceit or misrepresentation by representing or implying to the Court that he was not aware of potentially exculpatory DNA test results or alternatively was not aware of their exclusion from the lab report at the beginning of a hearing before the court on December 15, 2006; made misrepresentations to the Grievance Committee concerning the DNA evidence and test results, violating Rule 8.4 (c); and engaged in a pattern of misconduct and violations constituting a systematic abuse of prosecutorial discretion in the underlying criminal cases. The Duke University case is indeed a nightmare for the defendants -- one they did not choose. It has become a nightmare for Mr. Nifong, based on his decisions. It may prove a far worse nightmare for him, as his actions may cost him his license to practice law, and he might face criminal charges of obstruction of justice, false statements and perjury.(7)

Prosecutors are required to conduct themselves consistent with the highest ethical standards as ministers of justice. Comment No. 1 to Bar Rule 3.8 introduces the subject of the special responsibilities of the prosecutor with this admonition: "A prosecutor has the responsibility of a minister of justice and not simply that of an advocate; the prosecutor's duty is to seek justice, not merely to convict." Based on the allegations in the Bar complaint, it appears that Mr. Nifong treated this prosecution as a circus turning his duty to seek justice into one guided solely by what he could achieve under the mere "morals of the marketplace" (Meinhard v. Salmon, 249 N.Y. 458 (1928)). A brief discussion of the applicable Bar Rules proves just that.

According to Rule 3.6 (a) a lawyer participating "in the investigation or litigation of a matter shall not make an extrajudicial statement that the lawyer knows or reasonably should know will be disseminated by means of public communication and will have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter."

Rule 3.8 of the Bar Rules directly relates to the conduct of the attorney as prosecutor. Pursuant to Rule 3.8 (f), this rule admonishes the prosecutor that he shall refrain from "making extrajudicial comments that have a substantial likelihood of heightening public condemnation of the accused". Rule 3.8 (d) imposes a duty upon the prosecutor to "make timely disclosure to the defense of all evidence or information required to be disclosed by applicable law, rules of procedure, or court opinions including all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense."

Comment No. 6 specifies that paragraph (f) supplements Rule 3.6 prohibiting extrajudicial statements that have a substantial likelihood of prejudicing and adjudicatory proceeding. It admonishes the prosecutor that in the context of criminal prosecution, an "extrajudicial statement can create the additional problem of increasing public condemnation of the accused." Comment No. 6 also makes clear that a prosecutor should "avoid comments which have no legitimate law enforcement purpose and have a substantial likelihood of increasing public opprobrium of the accused."

Comment No. 1 to Rule 3.8 admonishes the prosecutor that he "has the responsibility of a minister of justice and not simply that of an advocate; the prosecutor's duty is to seek justice, not merely to convict. This responsibility carries with it specific obligations to see that the defendant is accorded procedural justice and that guilt is decided upon the basis of sufficient evidence." Comment No. 4 admonishes the prosecutor to be "aware of the discovery requirements established by statutory law and case law, specifically referencing N.C.G.S.A. 15A-903 et seq. and Brady v. Maryland, 373 U.S. 83 (1963) and Giglio v. U.S., 405 U.S. 150 (1972). Brady and Giglio stand for long established law that a prosecutor must disclose exculpatory evidence as well as evidence that may raise questions about the credibility of a complaining witness.

By continuously making extrajudicial comments about the defendants, other witnesses, supporting a version of the victim's story (without having interviewed her) and inflaming the public to hold the defendants to scorn and ridicule, lying to the Court and counsel, and to the Grievance Committee, as detailed in the Bar complaint, Mr. Nifong violated Rule 3.4 and 3.6. By failing to turn over exculpatory evidence relating to the DNA tests and directing the lab to conceal the exculpatory evidence from the defendants, he violated Rule 3.8.

Indeed by failing to interview the victim, and turning down defense counsel's offer to consider the defense evidence prior to indictment, or thereafter, Mr. Nifong appears to have conducted this prosecution in direct violation of Standard 3-3.4 of The ABA Standards relating to the Prosecution Function. That Standard recognizes that the decision to institute criminal proceedings is the primary responsibility of the prosecutor. On the issue of the duty to interview the complaining witness - something that Mr. Nifong chose not to do -- Standard 3-3.4 (d) recognizes that only the prosecutor, not the police officer initially at the scene, is by virtue of his power to institute criminal charges in the position to evaluate the quality of the evidence to support a conviction.

ABA Standard 3-3.11 admonishes the prosecutor not to ignore facts. "A prosecutor may not properly refrain from investigation in order to avoid coming into possession of evidence that may weaken the prosecution's case, independent of whether disclosure to the defense may be required. The duty of the prosecutor is to acquire all the relevant evidence without regard to its impact on the success of the prosecution."

There are sure to be many more developments in the story of how Mr. Nifong conducted the prosecution of the three Duke University students that will have direct impact on his license to practice law. This is a story that squarely teaches that "rushing to judgment" without wisely stepping back and reviewing the evidence runs directly counter to the ethical obligations that govern how attorneys are required to conduct themselves. The harm of such ignorant conduct is that others are grievously wounded. Familiarity with, and adherence to, the code of professional responsibility provides the foundation for attorneys to avoid abuse of their license and harm others by so doing.

(1) Henry Korn served as a Member of the Departmental Disciplinary Committee First Judicial Department in New York from 1982 through 1988. The Committee was established by the Appellate Division of the Supreme Court to hear cases of lawyer misconduct and report to the Appellate Division as to the appropriate punishment to be imposed on an attorney who violated the Code of Professional Responsibility in New York. Prior to serving as a Member of the Committee and hearing such cases, Mr. Korn served as an Assistant U.S. Attorney for the Southern District of New York from 1976-81 in its Criminal Division.

(2) The Duke story was a field day for news media, as well as network television. Every media representative jumped into this story to rush the "facts" to the public. Leading news organizations, including The New York Times, San Francisco Chronicle, Associated Press, and Los Angeles Times, all sent staff to Durham and all rushed to meet deadlines and most often fed the frenzy of this story, emphasizing Town/Gown discord and racial considerations for their story lines. The daily involvement of these out of state newspapers is graphically compiled in http://en.wikipedia.org/wiki/Duke_University_lacrosse_team_scandal

(3) The term "in the belly of the beast" was used by Norman Mailer in his best selling work, co-authored with Jack Henry Abbott, In the Belly of the Beast: Letters from Prison (Random House 1981), to describe the experience that one charged with a crime faces as he works his way through the criminal justice and if sentenced, within the prison system, blind in a practical and metaphysical sense by the defendant's lack of understanding (thus, darkness) of the chambers where the business of criminal justice and punishment is conducted.

(4) http://sports.yahoo.com/top/news; Associated Press 28 December 2006. The North Carolina Bar Association formal complaint can be found at http://www.wral-tv.com/news/local/story/1120129/.

(6) As any current and former prosecutor or law enforcement official will admit, should defense counsel or his client wish to disclose the defense evidence prior to the filing of criminal charges, or at any time pre-trial, it would be professionally irresponsible to decline such an invitation.

Gang-related trial ends with split jury

By John Stevenson : The Herald-Sun, Mar 7, 2007 : 12:19 am ET

DURHAM -- A gang-related homicide trial against Tyrone Dean of Durham ended with a hung jury Tuesday as at least one panelist expressed fear of possible harm.

The last reported split among jurors was 8-4, reportedly in favor of guilty, after about two full days of deliberations in Durham County Superior Court.

Prosecutor David Saacks said he intended to try Dean again for the May 2004 fatal shooting of 22-year-old Reginald Diondras Johnson on Weaver Street.

Evidence indicated that Johnson, an unintended victim, was mistakenly gunned down as Dean and three co-defendants lay in wait for a gang rival.

Before a mistrial was declared Tuesday, jurors had sent four notes to Judge Orlando F. Hudson, either expressing fear or implying they were concerned about people in the courtroom audience. The panelists stopped short of saying they had been threatened.

According to lawyers, such concerns probably arose from the ostentatious presence of suspected gang members on some days, a development that prompted police and deputies to beef up security dramatically.

"Part of the problem was that you had 20 deputies in there, plus members of the police gang unit wall-to-wall," defense lawyer John Fitzpatrick said after Tuesday's mistrial. "That changed the atmosphere quite a bit."

Fitzpatrick said he was "glad the jury did not allow emotions to dictate a verdict. They stuck to their convictions and made decisions they thought were best individually, not just collectively. That's why we have 12-person juries."

Dean faced an automatic sentence of life in prison without parole if convicted of first-degree murder. The death penalty was not being sought, and the lesser offense of second-degree murder was not on the table. .

Dean did not testify in his own defense and presented only one alibi witness, his sister, who said he was home with her when the shooting occurred.

A key prosecution witness was Philipe Antonio Parker, who faces an unrelated murder charge of his own, although he was not accused in Johnson's death despite being the admitted getaway driver.

Identifying Dean as one of the shooters, Parker testified that bullets began flying from at least three handguns when Johnson appeared on the night in question.

But Fitzpatrick pointed out that Parker faced five felony charges at the time he agreed to help authorities against Dean: two counts of assault with a deadly weapon with intent to kill, possession of a weapon of mass destruction, shooting into occupied property and homicide.

Parker acknowledged he had received probation for all his charges except murder.

"You wanted to do whatever you could to save your butt?" the defense lawyer demanded on cross-examination.

"No, sir," Parker replied.

"Sweet deal, wasn't it?" asked Fitzpatrick, not getting an answer.

It was not alleged that Dean fired the fatal bullet. But prosecutor Saacks contended he was guilty of murder anyway, since he was shooting at the time and "acting in concert" with other gunmen.

Homicide charges in the case remain pending against Deshaun Moshea Mitchell, Joshua Lamont Johnson and Mario Pier Fortune.

http://www.heraldsun.com/durham/4-826665.cfm

Lawyer says client's convictiion "legally impossible"

By John Stevenson : The Herald-Sun, Mar 8, 2007 : 12:19 am ET

DURHAM -- Making the bold claim that a conviction is "legally impossible" in a murder case against one of his clients, defense lawyer John Fitzpatrick asked Wednesday that the District Attorney's Office be prohibited from trying the matter next week.

Fitzpatrick said in a written motion that "justice and judicial economy" mandated a dismissal of the charge against Thomas Bennett, who is accused of killing another man at a gasoline station on Avondale Drive five years ago.

Fitzpatrick made the request in a rare "petition for writ of prohibition" filed in Durham County Superior Court.

"It's not done very often," the defense attorney said in an interview. "It's definitely not trivial. It's fundamental. It's central to our system of justice. I believe there is no chance of a conviction in this case. But because the jury system is not perfect, the facts and circumstances do not support exposing my client to potential loss of liberty for the rest of his life. The case needs to be dismissed."

Bennett faces an automatic sentence of life in prison without parole if convicted of first-degree murder in the death of Carl Cary.

Fitzpatrick's petition wasn't filed until a few minutes before court closed for the day Wednesday, and attempts to reach Assistant District Attorney Tracey Cline -- who is prosecuting Bennett -- were unsuccessful.

Other lawyers agreed that writs of prohibition aren't often seen in Durham.

"It's a very rare duck, but it can be quite effective," said veteran attorney Bill Thomas.

Thomas said another lawyer in his firm, Jay Ferguson, successfully obtained such a writ in a serious felony case about a decade ago. Other than that, he said he had not seen the obscure litigation tool used locally.

According to the petition filed by Fitzpatrick on Wednesday, Cary solicited Bennett to buy marijuana from him, and the two began arguing inside the victim's car on Avondale Drive. Cary then attempted to drive away, Bennett pulled a .45-caliber gun to keep from being kidnapped and the two struggled over the weapon, according to the petition.

Fitzpatrick cited reports indicating that a third man, Decarl Sanders, soon approached and shot Cary in an apparent attempt to help Bennett.

Bennett and Sanders finally left the scene together, and Cary collapsed with a fatal wound, Fitzpatrick's petition said.

The petition argued that Bennett clearly was not the shooter, and that he could not be convicted under a legal theory known as "acting in concert" because he and Sanders had no "common scheme or purpose" to kill Cary.

Sanders "could have reasonably believed that [Bennett's] life was in danger, thereby allowing him to exercise a defense of a third party," the petition added. "It would be considered a justified killing."

Under the circumstances, "a conviction is legally impossible in this case," the petition concluded.

http://www.heraldsun.com/durham/4-827061.cfm

* More fun and games in the Durham Halls of Justice.

---- ONE YEAR ANNIVERSARY of the Hoax, Election Fraud and Hostage Shakedown ----

Lacrosse case weaves a heated legacy

By BRIANNE DOPART and JOHN STEVENSON : The Herald-Sun, Mar 11, 2007 : 12:08 am ET

A year after the team party that made "Duke lacrosse" a household phrase across the nation, the cottage at 610 N. Buchanan Blvd. stands empty.

The shutters hang slightly askew and the white paint is dingy, the same as on the night of March 13-14, 2006 -- when two exotic dancers arrived to perform.

But what seemed destined to be just another raucous student bash near East Campus rocketed to the forefront of national news after one of the hired dancers told police three players gang-raped her in a bathroom.

For the past 12 months, what happened -- or didn't -- that night has fueled a raging debate that spans continents and oceans thanks to TV talk shows, e-mail and Internet blogs.

The emotional currents run strong.

The accused players are white men who attend one of the nation's most prestigious and expensive universities. They come from well-heeled families who live near Washington, D.C., and New York City. And they belonged to a team with a history of off-campus misbehavior.

The accuser is a single black mother from a modest background who at the time of the alleged attack attended historically black N.C. Central University in Durham. She has a criminal record and repeatedly has changed her account of what she contends happened to her at the party.

As the two dancers left the Buchanan Boulevard house early on the morning of March 14, there was allegedly an exchange of racial slurs.

Details of the incident made headlines on a Friday, more than a week after the alleged attack.

A hint of what lay ahead came the next night.

About 100 people, most from the surrounding Trinity Park neighborhood, held a prayer vigil outside the party house. It was a somber, quiet, candle-lit gathering like those typically held for Durham murder victims. Some wept.

But by early that Sunday morning, a larger, louder crowd gathered -- dotted with student and community activists. For nearly two hours, they chanted, sang and banged pots and trash cans to deliver "a wake-up call" to the players who lived in the house and in other nearby rental houses.

Some spoke using a megaphone. And several strayed from the alleged rape into speeches about fair wages, sweatshops and other social and political issues on the Duke campus and in Durham.

In the days and weeks after, a swift succession of rallies and vigils followed at the Buchanan Boulevard house -- as local and national media attention mushroomed.

The single alleged attack -- one among about 100 reported rapes in Durham every year -- exploded from concern about sexual violence into a highly charged debate about racial, social and gender issues; sexual politics; the accuser's credibility; the district attorney's honesty; and Duke University's mission as an institution of higher learning and athletics, now under intense self-scrutiny.

A year after the party that made "Duke lacrosse" a household phrase across the nation, "why?" remains a hotly debated question.

Duke spokesman John Burness calls the case a "perfect storm" of race, class, perceived privilege, politics and other issues.

And he concedes the lacrosse team had a reputation for inappropriate behavior.

But Burness, Duke's senior vice president of public and government relations, said much of the community reaction also was inappropriate.

Some of the most vocal members of groups who plastered 610 Buchanan Blvd. with signs like "Get a conscience, not a lawyer" were people with long-standing beefs against Duke, he said.

"There were people in the community upset with Duke students in general over a pattern of behavior they found to be offensive," Burness said.

Long before police Cpl. David Addison and District Attorney Mike Nifong -- an election campaign on his horizon -- spoke out against the team, "a foundation of anger" existed that spurred some people at Duke and in Durham to "rush to judgment," Burness said.

"That was the tone of it all," he said, citing early chatter on the Trinity Park neighborhood e-mail message board that he said sparked the first protests outside 610 N. Buchanan. "A lot of people working off of history, not willing to step back."

Those people, Burness said, made "a leap from a perception of what I would call boorish behavior to believing something as significant as a gang rape had occurred."

On March 18, 2006 -- nearly a week after the alleged attack -- then-police investigator Mark Gottlieb posted a note on the message board announcing the police investigation.

Lots of people responded. But some focused not on the alleged attack, but on past problems with Duke students living in the neighborhood.

Typical was one response that cited trash, smashed beer bottles, parking on sidewalks, graffiti and drunkenness, and called the Duke students "disgusting people" who should leave the neighborhood.

Burness said he thinks relations between Duke and Durham "are good." But when people gathered in large groups and loudly proclaimed their issues with the college, their sheer volume became "newsworthy" and in some sense, gained credibility, he said.

Duke employee Kelly Jarrett, who participated in protests and frequently wrote about it on a community message board, said it was the other way around.

Media coverage of the alleged attack is what drew 100 people to the first protest at 610 N. Buchanan Blvd., said Jarrett, who lives in Old West Durham several blocks west of Trinity Park. The rally came a day after the story started making headlines.

Jarrett pointed to lack of coverage, and lack of protests, about the other 99 rapes reported to Durham police in 2006, 11 of which the Durham Crisis Response Center said were gang rapes.

"Where was the press on those?" she asked.

Duke law professor James Coleman said the year has been filled with turmoil.

"The city, the university and students on the lacrosse team have suffered some hard body blows," he said.

Coleman said a lot of what happened was unnecessary, beginning with the party itself and continuing with Nifong -- who, he said, hung onto the case too long before stepping aside in favor of special prosecutors from the state Attorney General's Office.

The whole affair, Coleman said, comes across like a tawdry novel.

"You've got a Southern university, you've got race and you've got sex," he said Friday. "Then you've got a DA who kind of portrays himself as the Lone Ranger, riding in on his white stallion to save the poor black people. He kind of set it up as a latter-day 'Gone With the Wind.' Then he tried to shake the case his way rather than let the facts shake it. He trimmed everything to match his preconceptions."

UNC professor Joe Kennedy said it would be a mistake to focus too much on money and ethnicity.

"People who look at this case mostly through a prism of race or class risk missing a lesson about the enormous power prosecutors have in the criminal justice system," Kennedy said. "This case underscores the fact that a defendant's rights aren't technicalities. They need to be taken seriously. Nifong has not taken seriously the possibility that these [lacrosse] defendants might be innocent."

The three defendants, Reade Seligmann, Collin Finnerty and David Evans, remain free on bond awaiting a trial on sexual-offense and kidnapping charges -- both felonies. No trial date has been set.

Meanwhile, Nifong faces a June N.C. State Bar hearing on allegations that he withheld evidence from the players' defense attorneys that might have bolstered their case, then lied about it, and that he made inappropriate comments to the press, including calling the alleged attackers "hooligans."

Nifong could be cleared, warned or disbarred. He declined to comment for this article.

One of the attorneys defending him, David Freedman of Winston-Salem, said he had "confidence in the bar's ability to hear cases fairly and come up with a just result."

"Anytime you represent an attorney before the State Bar, where one's ability to practice law is in jeopardy, it's very serious," Freedman said.

In a recent response to the bar, Nifong denied he did anything wrong.

Freedman predicted Nifong would accept no deals, would admit no fault and would battle it out in "a fair and impartial hearing" before the State Bar.

http://www.heraldsun.com/durham/4-828117.cfm

---- ONE YEAR ANNIVERSARY of the Hoax, Election Fraud and Hostage Shakedown ----

The Virtual Support Team
Rob Copeland, The Chronicle, Posted: 3/8/07

By day, Mike McCusker is just another suit in midtown Manhattan, a civil lawyer working for a large, faceless firm.

At night, though, he steps into his metaphorical telephone booth and emerges as NDLax84, proprietor of the aptly named "Crystal Mess" blog, which has offered commentary on the Duke lacrosse case since last June.

Posts range from the serious to the sophomoric. One day it's an analysis of Steve Monks' decision to run against Lewis Cheek. Another day it's a heavily edited image of South Park's Eric Cartman in a Duke Lacrosse jersey, screaming "Mike Nifong Sucks Ass!" Or a picture of a clown spinning a top to demonstrate McCusker's opinion of the mainstream media's impartiality.

As national attention to the scandal wanes and The Drudge Report returns to covering Britney's latest stint in rehab, blogs are some of the only places still providing regular commentary on the case. Their writers have become the mini-celebrities of the whole episode, and now they're reaping the benefits, with thousands of daily readers boosting their profiles and a book deal in the works for one prominent commentator.

"I think in the end it's all good for democracy, for a nation that touts itself as a government of the people, by the people and for the people," says McCusker, a Notre Dame alum with a Blue Devil wife. "The rise of the Net-and the blogosphere in general-has so clearly demonstrated how a concerned citizenry intent on ascertaining the truth is ultimately a much more powerful force than the mainstream media."

As a lawyer, McCusker was motivated by the "egregious" conduct of Durham District Attorney Mike Nifong, adding that the indicted players deserve compensation from the city.

"As they press the flesh with people they are coming to meet for the first time, they will always be remembered as the kids who supposedly raped that poor black girl in Durham," he says. "Each and every one of those kids should own 1/3 of Durham County."

But the dean of the lacrosse bloggers is unquestionably KC Johnson, a 39-year-old history professor from low-profile Brooklyn College, whose "Durham-in-Wonderland" website boasts more than 15,000 page views per day-with more than a handful from the Duke campus, according to online readership statistics.

Johnson has become an unlikely hero for those who believe the indicted players have suffered injustice. His last book, on Congress during the Cold War, was considered a massive success because it was one of the top 100,000 books on Amazon.com's sales ranking for a few days, he says.

He's likely to do a little better for his next effort, a book about the lacrosse case he is co-writing with Stuart Taylor of National Journal.

"I continue to view the blog as an academic enterprise," Johnson explains. "I have the freedom to speak on some of the academic issues that someone who is a professor at Duke wouldn't have, because there is very little that the Group of 88 can do to retaliate against me."

Johnson is referring, of course, to the group of much-criticized professors who published an advertisement in The Chronicle last April which featured anonymous quotes from students and asked, "What Does a Social Disaster Look Like?"

It hasn't been a smooth ride since then, as much of the blogging community has made it a mission to hold those professors accountable for their ostensible rush to judgment. Some blog readers have posted vicious comments on online message boards, and several Duke professors have reportedly received racist, threatening e-mails from anonymous strangers.

All of the bloggers interviewed for this story said they delete unconstructive comments and discourage readers from sending hateful e-mails.

But it's a political issue for some, including William Anderson, who writes at lewrockwell.com, which does not have a message board attached directly to its articles.

A self-described Libertarian and a professor at Frostburg State University in Western Maryland, Anderson says he was alarmed by the "storm trooper tactics" occurring in Durham.

"Every single editorial writer in this country, including The News & Observer and The Herald Scum [sic] were all parroting the same thing," Anderson says, adding that he has sought out personal confrontations with any individual faculty members.

Having written about general issues of crime and justice for many years, Anderson says he became alarmed when he perceived three men on the brink of a prison sentence, with no outcry or support from the public.

"I thought, it's us versus them," Anderson says. "I get fired up about this sort of thing.... Those guys had a lynch mob against them."

And though most of the commentary has been in support of the lacrosse players, the blog "Justice 4 Two Sisters" called for a new focus on the alleged victim before its authors stopped writing Nov. 7, 2006. The author did not respond to a request for comment.

In a late-October post, the blog suggested that the indicted players take advantage of their bully pulpit to speak out against racism.

"I've said from the start of this case, if the public feels these guys have been treated unfairly and stereotyped, well congratulations, you now know what it feels like to be African-American and be prejudiced against," the author wrote.

Regardless of which side they take, for many bloggers on the lacrosse case, it's a labor of love, rather than a means for profit, because they say accepting advertisements would risk their independence.

But LaShawn Barber is different from most of the online commentators, and not only because her site is ringed by advertisements. As a black, female, Christian conservative, Barber naturally attracts attention in a case dominated by issues of race.

She has made a profession out of blogging, spending up to four hours per day on her own site-which receives 4,000 hits per day-and offering her consulting services to others.

"I'm not a feminist, and I don't shout racism at the drop of a hat," Barber says. "I'm very open about my faith and my politics, and that tends to make a lot of people mad-it makes a lot of black readers angry."

With her picture and contact information directly available on the site, Barber stands in contrast to blogs written anonymously, such as John-in-Carolina, who will only identify himself as a Duke alumnus.

McCusker says it is important to him that he stands behinds his words to maintain credibility.

"The bottom line is I'm not really a blogger; I'm a husband, a dad and a lawyer," he explains. "I don't make it my daily waking chore to write because I must."

Indeed, Crystal Mess has been updated infrequently lately, and McCusker says he is feeling the heat.

"I feel like a conscripted slave or employee of my readership, but it's certainly been by-and-large a very rewarding endeavor," he says, noting that he has been in communication with many of the other online commentators.

"I have an amicable and very wry, witty ongoing e-mailing with KC," he adds. "It's nice to know that for each of the ideologues out there like [the Group of 88], there are individuals who will point out the hypocrisy and call them on their lies."

For Johnson, in spite of his book deal and newfound celebrity status, he can only hope that he has made an impact on the indictments handed down last April.

"If the work that I've done ends the case one day earlier than it would have otherwise, I could consider all the work to be worth it," he says.

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Man arrested day after plea bargain

BY JOHN STEVENSON AND BRIANNE DOPART : The Herald-Sun, Mar 12, 2007 : 9:19 pm ET

DURHAM -- Just one day after successfully avoiding jail time for his role in the March 2006 shooting death of 24-year-old Alvin Jones, Nicholas Alexander Mack was back behind bars.

Mack, 18, of 9 Carin Court, was arrested Friday for carrying a concealed weapon, possession of marijuana and assault on a female. The charges came 24 hours after Mack pleaded guilty to a charge of being an accessory after the fact to Dontae Jones and Thomas Earl Kithcart Jr., who were also tried last week.

Prosecutors had argued that Mack, Kithcart and Dontae Jones were traveling with Alvin Jones when Alvin Jones was mistakenly hit by gunfire.

The Joneses were not related, but were friends.

Mack was out on bond for a marijuana charge when the slaying occurred, according to court records.

Prosecutor Jim Dornfried expressed anger and disappointment over the situation Monday, vowing to seek indictments on the new charges against Mack as early as possible.

But Dornfried also said last week's plea bargain probably was the best result obtainable, since a murder charge against Mack would have been difficult to prove, and Mack had only a minimal adult record: a 2006 conviction for giving false information to a law-enforcement officer.

Dornfried said all the evidence indicated someone other than Mack, specifically Dontae Jones, was the actual killer in the case in question.

In fact, Jones has pleaded guilty to voluntary manslaughter and has received a prison sentence of 44 to 62 months.

"If the evidence is there in a case, it is," said Dornfried. "If it's not, it's not. I've got to deal with what I have. If I've got a strong case and someone needs to be incarcerated, that's the approach I take. But it's foolishness to prosecute a case for which there is no evidence. In the Mack case, all the evidence pointed to someone else as the killer."

Dornfried said Mack's plea deal last week was approved by the murder victim's family.

If probation didn't get Mack's attention, the new charges will provide a serious wake-up call, he predicted.

"Some people out there just don't seem to realize the seriousness of felony charges," Dornfried added. "It just doesn't seem to sink in. But I think it will sink in soon for Mr. Mack."

Last week's plea bargain was accepted by Superior Court Judge Orlando F. Hudson, who theoretically could have rejected it.

But Hudson said Monday it is rare for North Carolina judges to turn down deals negotiated by prosecutors, who are in the best position to evaluate evidence from any given case.

When cases are weak, it is sometimes better for prosecutors to make generous plea offers instead of going to trial and possibly losing, according to Hudson.

That way, defendants get at least some punishment instead of none, the judge said.

"Prosecutors have a great deal of discretion," Hudson said. "What they don't have is a crystal ball. They have to use their best judgment. They can never know if a person placed on probation might commit another crime the next day, or even the same day. Sometimes things backfire."

Hudson said he was aware the Mack situation might contribute to a public loss of confidence in the judicial system.

However, he defended plea-bargaining as a necessary tool that prevents the system from breaking down under "overwhelming" caseloads.

"The general public might not like it, but they're kind of stuck with it," Hudson added. "The public must be aware of the realities. Not many plea bargains are rejected. Some are, but the vast majority are accepted. Otherwise, we could not get our business done."

http://www.heraldsun.com/durham/4-828650.cfm

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