Why the D.A. should be off the case [Nifong, Duke]

http://www.heraldsun.com/opinion/hsletters/

Lacrosse case erodes trust in justice system

Recently, U.S. Rep. Walter Jones of North Carolina wrote to U.S. Attorney General Alberto Gonzales requesting the Department of Justice review Durham District Attorney Mike Nifong's actions to determine whether they constitute prosecutorial misconduct and whether the rights of Duke lacrosse players Collin Finnerty, Dave Evans and Reade Seligmann have been violated. Jones was the first congressman or senator to have the courage to do this and I commend him.

I can think of no better time for government to help three families, namely the Finnerty, Seligmann and Evans families, than right now. It does not just take a village to raise our children. It takes a nation.

What is going on in Durham is not just a North Carolina issue. It is a national issue and a national disgrace. It affects all Americans who treasure our liberties and have faith in our justice system. If we lose that, we can lose everything. What will become of our country?

In this season of peace and hope, I am praying that other political leaders will have the courage to join Jones in requesting an investigation by the Department of Justice. Our nation is watching and waiting.

Garden City, NY

Joan M. Collins
Garden City, NY
December 22, 2006

Nifong's shameful ways

Shame on District Attorney Mike Nifong for railroading the Duke lacrosse players and withholding important DNA information. I understand the knee-jerk reaction for wanting to right civil rights wrongs of the past, but shame on Nifong. He's no different than the white supremacists of the past. It's just this time, those accused are a different color.

Jodi Moisan
Muncie, Ind.
December 22, 2006

Venue change is best

The "change of venue" motion filed Dec. 15 by the defense attorneys in the Duke lacrosse case is absolutely warranted. However, I question how much a "change of venue" will impact the verdict of the case. The defense lawyers argue that the two accused players are entitled to a jury, "whose members have not formed preconceived opinions about these cases."

Although the national media frenzy that followed the incident last spring may have already forged opinions and sympathies in the minds of people far removed from the Durham area, I am hopeful for a favorable response to their request and a just trial for both parties involved.

Naomi Barrowclough
Durham
December 22, 2006

Nifong's phony case

The judicial process in the lacrosse players' rape case was perverted by District Attorney Mike Nifong. Consider: There is absolutely no evidence that any crime was committed. There is not one witness who supports the accuser's claim. A gang rape in the space of five to 10 minutes that leaves the victim's clothing intact and body free of the marks of violence is logistically impossible.

This case should never have gone from the police investigation to the prosecutor, and would not have if not for Nifong's grandstanding. Your continued support of him is almost as unconscionable as his blind pursuit of this non-case.

David Highlands
St. Petersburg, Fla.
December 22, 2006

http://www.newsobserver.com/102/story/524281.html

Duke mobilizes to shield its image
Jane Stancill, Staff Writer
DURHAM - Dogged by months of damaging news stories about the lacrosse scandal, Duke University has launched a costly campaign of alumni dinners, national surveys and aggressive recruitment.

The effort -- which includes a 12-city tour by President Richard Brodhead and an entourage of faculty and students -- is part of a larger push to blunt publicity generated by gang-rape allegations involving lacrosse players. The charges resulted in an embarrassing examination of the school's social and academic culture.

Duke officials won't say how much the image makeover costs, but its reach is extensive.

Brodhead's tour, called "A Duke Conversation," invites hundreds of alumni for dinner and discussions in major cities from Los Angeles to New York. The admissions office has increased meet-and-greet sessions with prospective students while mailing tens of thousands of brochures that feature accomplished, impressive scholars and flattering descriptions of Durham.

An army of Duke students has volunteered to spread good news about Duke to their hometown high schools during fall and winter breaks. And Duke Vice President John Burness keeps 16 thick white binders on his desk, each stuffed with news clippings, strategy plans, consultants' reports and results from three national public opinion surveys.

Duke officials would like to see an immediate payoff for their efforts, but they say the recovery isn't a short-term proposition. A trial looms in 2007 for three former lacrosse players accused of rape.

"I've told trustees it's going to take two to five years to recover from this," Burness said.

Despite the players' denials and weaknesses in the district attorney's case, a seamy trial could create a media frenzy like the O.J. Simpson ordeal at the very time prospective students are deciding whether to come to Duke.

Applications dip

There are signs that Duke's recruitment efforts could take a hit from the lacrosse fallout. The university's early-decision applications dropped by nearly 20 percent this past fall, and officials concede the decrease was related partly to the scandal. The regular application deadline isn't until Jan. 2, so it remains to be seen whether Duke's final pool of possible students declines.

Steven Roy Goodman, a Duke alumnus and college admissions consultant in Washington, said some families are confused and are no longer certain about Duke.

"Some of the parents I consult with said, 'I'm not ready to throw my hat into the Duke ring yet,' " Goodman said.

Aside from lacrosse, Duke received more bad publicity in September with the release of a book by Wall Street Journal reporter Daniel Golden, titled "The Price of Admission." It describes how rich and well-connected Americans buy their way in to elite universities, with one chapter detailing how Duke had for years admitted the children of wealthy non-alumni in hopes of fat donations. The descriptions seemed only to perpetuate the image of white privilege that pervaded the lacrosse media coverage.

"That didn't do Duke any favors," Goodman said. "How does this resonate with the middle-class kid in Greensboro or the middle-class kid in Chicago?"

The publicity hasn't fazed everyone. Justin Lopez, 17, a senior at Northern High School in Durham, sent his application to Duke last month. His twin brother, Adrian, also applied.

Justin said he loves the Gothic architecture, and he can see himself studying biology there on his way to medical school and a career as a cardiologist. "The whole lacrosse incident didn't catch my attention at all," he said.

But to reach potential students and families who are paying attention to the lacrosse case, the admissions office recruited 600 student ambassadors to polish the university's image. The ambassadors give tours, host visitors and return to their high schools to give pro-Duke talks.

"They're always the best salespeople you've got," Burness said.

Duke also mailed 70,000 glossy booklets titled "Senior Stories" with profiles of talented students who seem the very opposite of rude, sex-crazed partyers described in some magazine stories, such as one in the June issue of Rolling Stone.

"We wanted people to understand who Duke undergraduates were," said Christoph Guttentag, dean of undergraduate admissions.

Graduates also have been prepped by the the alumni association, which instructs members on its Web site about how to respond to uncomfortable questions. Hypothetical questions include, "Does Duke's culture revolve around rowdiness and alcohol?" and "Is there too much emphasis on athletics?"

Burness said Brodhead's national tour of alumni groups has been well received. Talks focus on topics such as medical ethics, environmental research and other Duke strengths. The alumni are usually a friendly crowd who don't want to see their degrees devalued, but there is often at least one question about lacrosse.

But one of Brodhead's most vocal critics is a group of alumni outraged by what they see as Duke's failure to stand up for the accused former players.

Jason Trumpbour, spokesman for Friends of Duke University, said he feels the administration's handling of the matter has made a bad situation worse.

Burness said the survey research indicates views such as Trumpbour's are in the minority. But Duke, a young institution that built itself into a top-10 academic power relatively quickly, cannot afford a major slide in its reputation. It does not have the long traditions or enormous endowments of some of the Ivy League schools.

So the image campaign must go forward to counteract what Google has rated as the top scandal-related Internet query of 2006.

Burness estimates 75,000 stories about Duke lacrosse appeared this year, and it wasn't unusual for him to get 1,000 e-mail messages some days. Last week, the national media flocked to Durham again for a hearing. Burness fears it could be another difficult spring.

"Even a good story is a bad story if it's about lacrosse," Burness said, "because it's a reminder."
Staff writer Jane Stancill can be reached at 956-2464 or janes@newsobserver.com

http://www.newsobserver.com/1185/story/524272.html

DA's footing in lacrosse case unclear
A conflict-of-interest question over the handling of a report could trip Mike Nifong
Benjamin Niolet, Staff Writer
DURHAM - If Mike Nifong doesn't want to take himself off the rape case against three Duke University lacrosse players, he can be forced to go.

State law allows for a district attorney to be removed from office under certain conditions. Opinions differ, however, on whether a prosecutor can be ordered off a case for a conflict of interest.

After a court hearing last week, a growing chorus of critics is calling for Nifong to step down from the case or be removed. At the hearing, a DNA expert hired by the state testified that he and Nifong agreed to leave out of a report test results that excluded the entire Duke University lacrosse team from DNA samples taken from the accuser's body and underwear.

The allegations themselves are radioactive enough that Nifong should at least consider whether to recuse himself, said Irving Joyner, a professor of law at N.C. Central University.

The state NAACP in April asked Joyner to monitor the lacrosse case.

"Because of the flak that's involved and the credibility of the prosecution, I think that's probably something he ought to consider in the interest of justice and ensuring that there is an unbiased prosecution or if there is to be a prosecution," Joyner said. "I think he ought to consider whether it makes sense at this point to do that in light of all the surrounding circumstances, which look bad."

Nifong did not return a call seeking comment Thursday. He has not responded publicly to criticism that he withheld evidence or at least put the burden on the defense to uncover the test results. State law requires Nifong to turn over the DNA tests results, legal experts said. The law puts a special emphasis on exculpatory evidence, which tends to clear a person.

"As someone who used to spend my time defending people, I'm sensitive to the idea that he may not have yet had a chance to fully air his side," said Joseph Kennedy, an associate professor of law at the UNC School of Law. "But that's part of the problem. He is in a position where he's essentially accused by his own witness of hiding potentially exculpatory material."

In a column published in The News & Observer on Thursday, Kennedy argued that the latest developments in the lacrosse case have created a conflict of interest for Nifong and he should step aside from the case or be replaced with another prosecutor.

Nifong has rejected calls in the past for him to step aside in the case against three Duke University lacrosse players who are accused of raping an escort service worker hired to perform at a March team party. David Evans, 23, of Bethesda, Md., Collin Finnerty, 20, of Garden City, N.Y., and Reade Seligmann, 20, of Essex Fells, N.J., all maintain their innocence and say the allegations are lies.

Kennedy said Nifong could take himself off the case, the defense could ask the judge to remove him, or the judge himself could take Nifong off the case. Typical conflicts of interest in criminal cases surface when a lawyer previously represented or prosecuted a witness, Kennedy said. Prosecutors are also replaced in cases where the state is prosecuting a law enforcement official.

"This would be a strange one for a court to get its hands around," Kennedy said.

Joyner said he doesn't think a judge has the authority to pull a prosecutor off a case.

In May, lawyers for Seligmann filed a motion seeking to have Nifong removed from the case. The request appears to have largely been dropped for now. Kennedy said the defense would likely want to keep Nifong on the case.

State law also allows a prosecutor to be removed under particular circumstances, including willful misconduct in office or conduct prejudicial to the administration of justice which brings the office into disrepute. The process begins when someone files a sworn statement in the prosecutor's county charging him or her with a violation. The senior resident Superior Court judge in that county, or a judge he or she selects, must review the complaint and decide whether it will go forward. If the charge proceeds, the judge convenes a public hearing on the complaint. That judge has the power to remove the district attorney.

The procedure was used in 1995 to oust Jerry Spivey, then the district attorney for New Hanover and Pender counties. One night in June 1995, Spivey was at a bar in Wrightsville Beach when he got into an argument with a black patron, a player for the Denver Broncos football team. Spivey launched racial epithets and profanity at the player, and bouncers had to drag Spivey from the bar, prying his fingers from the doorway as he screamed obscenities.
Staff writer Benjamin Niolet can be reached at 956-2404 or bniolet@newsobserver.com.

http://www.centredaily.com/mld/centredaily/news/opinion/16296550.htm
Christine M. Flowers | SCOTTSBORO BOYS, 2006

MIKE NIFONG, the D.A. prosecuting the Duke rape case, is every lawyer's worst nightmare - a caricature wrapped in a stereotype of the proverbial shyster.

He makes the bad jokes possible. (Why do scientists prefer lawyers to rats for experiments? Because they become too attached to the rats.) He conjures up images of ambulances and ill-fitting suits. He confirms every doctor's conviction of belonging to the superior profession. The only bar that Nifong belongs in is the kind that comes with stools.

Whenever a member of the profession abandons ethics to advance an agenda, all of us who took an oath to uphold the Constitution are diminished.

Most people don't dwell on the accomplishments of the Thomas Mores, Andrew Hamiltons and Clarence Darrows. They focus on the mediocrities like the Durham County D.A., who sacrificed whatever integrity he might have had to win an election. He is, if anything, more prostitute than prosecutor.

It's not necessary to rehash the sordid details of the case; anyone with access to the Internet or cable TV is familiar with the widely divergent versions of what happened on the night of March 13. Suffice it to say that a black woman who worked part-time as a stripper accused three lacrosse players of raping her after she was hired to perform at an off-campus party.

She identified her attackers from a photo lineup limited to pictures of white team members, a tainted procedure by any standard. Tests done immediately after the alleged incident confirmed that there was no DNA on the accuser that could be traced back to the students.

Despite that, and the fact that the woman had made a false rape allegation in the past, Nifong took the case to a grand jury, which indicted three of the athletes for kidnapping and rape. At the time of the indictments, Nifong was running for re-election in a town with a significant minority population. Unsurprisingly, he won a second term.

And now, nine months later, during which time the accuser disappeared behind the veil of anonymity provided by rape shield laws while the accused were paraded before the nedia, comes word that the D.A. committed an act that, if there is any real justice left in North Carolina, will get him disbarred.

Back in May, after a second set of tests confirmed that none of the DNA found on the underwear or body of the accuser belonged to the defendants, Nifong colluded with the head of the test lab to withhold that information from the defense.

Brian Meehan, director of the lab that conducted the exams testified under oath at a recent hearing in the case that he and Nifong agreed not to hand over the exculpatory evidence to the students' lawyers.

If that's true, and there's little reason

to believe that it isn't, the D.A. is not only immoral and opportunistic. He must be disbarred.

For anyone familiar with the sad and sordid history of Jim Crow, this case summons up the ghosts of the Scottsboro boys, young black men who were wrongfully accused of raping two white women. It's also eerily reminiscent of the case of Emmet Till, a black teen lynched because he whistled at a white woman. This pattern of persecution based on skin color is a shameful part of our national autobiography.

Perhaps that's why the local chapter of the NAACP is supporting Nifong. As columnist Thomas Sowell recently noted, "There is a segment of the black community - a small segment, we can hope - that figures it is payback time for all of the black men who have been railroaded to jail on trumped-up charges." If he's right, that's tragic. It would prove that we haven't learned anything over the last three generations.

And let's not forget about the other elephant in the room: class. Months ago, when I first wrote about this case, I got an e-mail from a reader that said:

I wonder what would motivate you to view this Duke debacle as "An American Tragedy." I understand the question of whether a crime was committed, but why get all weepy about it? These privileged youths all have high-powered attorneys.

THERE'S NO denying that race and class are the combustibles here. But it's Nifong who struck the match.

The real problem isn't the color or net worth of the protagonists. It's the fact that an officer of the court duty-bound to see that justice is done made political hay out of personal tragedies and trampled on the civil rights of three young men.

Let's hope he gets his own dose of justice. The poetic kind.
Christine M. Flowers is a lawyer. E-mail cflowers1961@yahoo.com.

http://reason.com/news/printer/117473.html

The Government Fix

Just how bad has Mike Nifong screwed up?

Jeff Taylor | December 22, 2006
Somewhere between the Nancy Grace send-up on Saturday Night Live and Susan Estrich's plea for outside intervention in the case, it became clear that Durham district attorney Mike Nifong has made fans of limited government confront an ugly truth. Despite the sensible urge not to federalize every issue, sometimes only another layer of government can fix bad government.

The Duke lacrosse rape case hurtled past mere prosecutorial incompetence or vanity and toward darker, perhaps sinister, motives last week with testimony from the head of the private DNA lab Nifong hired to test the rape kit samples taken from the accuser. Brian Meehan revealed that not only had his lab found DNA samples from five unknown men, none of whom were Duke lacrosse players, Meehan had also agreed with Nifong not to put that info in the DNA Security's final report. Were it not for the fact that the three defendants have counsel capable of pouring over thousands of pages of technical documents, this vital, exculpatory evidence would have gone unnoticed.

Nifong briefly tried to explain the omission, but there really cannot be any. As Estrich noted, "withholding exculpatory evidence moves the impropriety to a whole new level. This is not simply best practices, but basic constitutional criminal law."

This new DNA evidence bombshell underscored for a national audience the question rattling around the state's legal circles since spring, "Well, who is going to stop him?"

It has long been clear that Nifong's procedures were extraordinary for a rape case in the state. Anyone familiar with criminal cases in North Carolina knows that it is typical for rape kits to languish untested for months as the state lab is backed up, yet Nifong personally made sure the state lab got to this kit almost immediately and then took the extraordinary step of going to an outside private lab for more rigorous testing. Now it is clear that those results were carefully cooked to avoid providing ammunition to the defense. Now Susan Estrich gets to wonder, "What will it take for Mike Nifong to be replaced on this case?"

There is the problem. Nifong is a duly elected officer of court and as such, beyond the reach of state's weak executive branch. The judicial branch merely nodded toward the explosive nature of case, staying far away form the merits -- or lack thereof. The state Supreme Court did order up a judge from outside of Durham to hear the case. But it is unclear that Judge Osmond Smith III from tiny Semora is exactly equipped to brave the harsh media storm that will ensue were Smith to dismiss the case.

And the General Assembly is much more consumed by who will be the next speaker of the state House than by events in Durham. In fact, the parents of the defendants have more juice in political circles in Washington, DC than they do in Raleigh. The state's political culture just is not wired to care very much about what happens in a Durham courtroom to a lacrosse playing kid from Bethesda. Much like the Bulgarian health care workers convicted of spreading AIDS in Libya -- not from around here and should've known better to get involved in that crazy place.

Duke University itself, then. Perhaps a concerted effort by the university administration and faculty could bring enough heat on Nifong to get him to reconsider a very flawed course of action. No go. Duke has been thoroughly pro-Nifong, with the conspicuous exception of Duke Law professor James Coleman and the heroic attempts by some university supporters to nudge the institution away from the cliff.

This was demonstrated yet again this week when the Friends of Duke University called on the Duke administration to take stand in the face of "Mr. Nifong's continued assault on the civil liberties of Duke students." Instead the call was met with proof that President Richard Brodhead is unfamiliar with how the criminal justice system is supposed to work in America.

Brodhead continues to promote the tortured notion that the accuser deserves to air her claims in a court of law. Or as the News & Observer of Raleigh reported:

"Under American law, the legal system is the place to establish the facts and bring a case to a just resolution," Brodhead said. "For that reason, it is of the essence that everyone involved in the legal system act fairly in pursuing the truth and protecting the rights of the individuals involved. As I told Ed Bradley during a '60 Minutes' interview last summer, given the concerns that have been raised, when it goes before a judge and jury the DA's case will be on trial just as much as our students will be. In the meanwhile, as I have said before, our students must be presumed innocent until proven otherwise."

Thanks for nothing, Dick.

How about the State Bar, could it not move to discipline, and perhaps remove, Nifong? In theory, yes. Several complaints have been filed, but the wheels of such professional cartels move slowly even in the most egregious situations. Moreover, there is speculation that the Bar is loathe to get involved absent some sort of cover provided by the African-American lawyers. One would think that would not be a problem as rogue prosecutors withholding evidence would pose a much more immediate problem to the African-American community than to white college kids. Alas, there is none.

That leaves the efforts of quirky Rep. Walter Jones (R-N.C.) to get the feds involved. Jones, who does not even represent Durham, has asked the Justice Department to start its own investigation into Nifong's handling of the case. Jones, you'll recall, was among the very first Republicans to question the wisdom of the war in Iraq, so he is not at the top of the Bush administration Christmas card list.

Yet Justice has not flatly turned Jones down, and is instead making noises like it is taking the request seriously. However, with two federal grand juries already investigating political corruption in the state, there might be practical limits to how much more federal manpower can be brought down on North Carolina, America's very own banana republic. Top officials at Justice would have to push this matter.

Attorney General Alberto Gonzales then, incredibly, becomes the key to protecting basic civil liberties in what should be a routine criminal prosecution by local officials. And truth does not get much uglier than that.

Jeff A. Taylor writes from Charlotte, NC.

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