Duke case: When the end began

By Michael Gaynor

Brooklyn College Professor Robert K.C. Johnson promptly described the filing of an ethics complaint against Durham County, North Carolina District Attorney Michael B. Nifong by the North Carolina State Bar on December 28, 2006 as "the beginning of the end of Nifong's career as Durham D.A."

With all respect due to Professor Johnson (and it is considerable), "the end of Nifong's career as Durham D.A." began with Mr. Nifong's decision to treat what is commonly referred to as the Duke case as a political opportunity instead of a routine case, in March 2006.

Mr. Nifong's pernicious performance in the Duke case has been the antithesis of what a professional prosecutor is supposed to do. Mr. Nifong appointed himself lead investigator in the case and then willfully refused offers to take polygraph tests, treated the dubious gang rape claim as true, ignored the truth, fooled a grand jury, tried to frame the defendants, concealed exculpatory evidence, poisoned the potential jury poll, exacerbated racial tensions, defamed people and generally postured and scapegoated with relish.

As a result, Mr. Nifong achieved an upset plurality victory in the Democrat primary for Durham County District Attorney.

BUT, trying to demonize the members of the 2005-2006 Duke University Men's Lacrosse Team AND to frame Reade Seligmann, Collin Finnerty and David Evans (aka the Duke Three) on bogus rape, kidnapping and sexual assault charges was doomed to fail.

Those who have followed the Duke case may wonder, but North Carolina district attorneys ARE bound to be fair and impartial ministers of justice.

There is NOT an exception that permits a North Carolina district attorney to behave otherwise in an election year or to mistreat young white men from wealthy families in other states.

Mr. Nifong only could succeed if the truth could be suppressed.

In the Duke case, it could NOT be suppressed.

The lacrosse players and their families and friends had the will and the means to resist persecution and to prevail in both the courtroom of public opinion and the courts of North Carolina.

Mr. Nifong did not know how foolish he was being. (I doubt he does even now.)

Yes, the mainstream media initially wallowed in the poor-black-female-gang-raped-by-rich,-racist, -sexist,-elitist-white-guys bill of goods peddled by false accuser Crystal Gail Mangum and foolhardy prosecutor Nifong.

But this is the age of DNA testing and bloggers.

The DNA tests did not implicate any of the white lacrosse players (and Ms. Mangum had insisted all of her attackers were white and given descriptions of what supposedly had happened that necessarily implied that there would be ample DNA evidence if it really had happened).

The bloggers were not gulled in 2004, when CBS used false documents to try to elect Senator John Kerry, and they proved that the documents were bogus.

The bloggers were not gulled in 2006, when Ms. Mangum's history indicated she was not a credible person, there was no evidence to confirm and there was evidence to contradict her claims.

This time CBS was there with the bloggers, exposing a hoax instead of helping a hoaxer.

Focusing on the Duke case was something America needed to do, so that the truth would prevail when it was through.

In "The deplorable Duke political prosecutions," posted on May 23, I reported: "Today the news is that documents show the accuser [I refused to call her the victim] first claimed that she was not raped, then claimed that she was raped by twenty Duke lacrosse players and eventually whittled that down to three (the same number she settled on when she charged some non-Duke males with rape years ago)."

In addition, I concluded: "What we appear to have here is an accuser who should be prosecuted, three Duke lacrosse players who never should have been indicted, a prosecutor abusing his office and the New Black Panthers out to exploit the situation while posing as champions of black womanhood. (The KKK championed white womanhood.)"

I was particularly confident of those conclusions not because I knew any of the principals in what has been a soap opera that cried out for appearances by Susan Lucci instead of Nancy Grace and Wendy Murphy, because America's top legal commentator, Stuart Taylor Jr., had written that "the available evidence leaves [him] about 85 percent confident that the three members who have been indicted on rape charges are innocent and that the accusation is a lie."

Regardless of what The New York Times and North Carolina newspapers were publishing, those words meant that Mr. Nifong had made a big mistake in prosecuting the Duke Three and it was only a matter of time before it became common knowledge.

Mr. Taylor already was identifying candidates for a Duke case rogues gallery. He did NOT include any of the wrongly indicted players. He DID "include more than 90 members of the Duke faculty who have prejudged the case, with some exuding the anti-white racism and disdain for student-athletes that pollutes many college faculties" as well as "former Princeton University President William Bowen and civil-rights lawyer Julius Chambers [who] went out of their way to slime the lacrosse players in a report on the Duke administration's handling of the rape scandal — a report that is a parody of race-obsessed political correctness."

Mr. Nifong probably did not realize that he was doomed, but he was.

Mr. Taylor took a sabbatical to work on a book on the case. He and Professor Johnson will co-author it. Mr. Nifong won't like it. Fair-minded people will.

In "Durham D.A. Nifong and prosecutorial ethics," posted on June 19, 2006, I set forth the applicable law that Mr. Nifong was disregarding:

"A prosecutor's basic ethical duties are not optional, obscure, or fairly debatable. In Young v. United States, 315 U.S. 257, 258 (1942), the United States Supreme Court stated what should be obvious even to Mr. Nifong: "The public trust reposed in the law enforcement officers of the Government requires that they be quick to confess error when...a miscarriage of justice may result from their remaining silent." Wanting to win an election is not a sufficient reason for a prosecutor to disregard this fundamental fiduciary duty."

"In Brady v. Maryland, 373 U.S. 83, 87 (1963), the United States Supreme Court held that 'the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.'

"Professor H. Richard Uviller, a former head of the appeals unit in the Manhattan District Attorney's office, described a prosecutor's pre-adversary role as 'the role of neutral investigator,' detailed the prosecutor's duty as making '[a] thorough and dispassionate investigation of' the pertinent facts and declared that 'where the result warrants, the prosecutor must not hesitate to cancel the victorious judgment and see that justice is done in the light of the amplified or revised facts.'"

I also urged Mr. Nifong "to move to set aside the hastily, wrongly (and wrongfully) obtained indictments of three Duke lacrosse players 'in the light of the amplified or revised facts.'"

Confident that Mr. Nifong had withheld material facts from the grand jury, I wrote,"Yes, you got a Durham grand jury to indict three Yankees, and the indictment standard is probable cause. BUT you did not fairly present the pertinent evidence, did you?", and concluded, "Mr. Nifong, it's time for you to have the indictments dismissed and to resign as district attorney and to surrender your license to practice law."

Alas, Mr. Nifong refused to do the right things, the voters foolishly elected him anyway (or for that reason) and now the North Carolina State Bar is moving toward disbarring him (and thereby removing him from office as well as the Duke case).

Thank you, Congressman Walter Jones, Republican of North Carolina, for calling for a United States Department of Justice investigation!

In "Duke case: Does the prosecutor need prosecuting?", posted on June 30, 2006, I mentioned a key fact that finally received general notice this month (better late than never!):

"Mr. Nifong should have wondered about the credibility of the accuser when the DNA samples were eagerly provided, or at least when the DNA found inside the accuser was determined not to have come from any of the Duke lacrosse players but from several other males. (Emphasis added)

"And the DNA results should have led Mr. Nifong to conclude that the indictments should be dismissed.

"But, Mr. Nifong, for whom the black vote was decisive in his Democrat primary win last April, still has to face the voters in November, and pretending that he has a case may seem preferable to admitting an egregious mistake.

"The key question now is not whether any of the Duke Three are guilty of any of the charges against them — they are not — but whether Mr. Nifong is reckless and stubborn, or worse."

The answer appears to be...WORSE!

On August 6, 2006, The News & Observer published a long article by Joseph Neff titled "Lacrosse files show gaps in DA's case." The gist: "A review of prosecution documents in the rape investigation reveals that the district attorney's public statements promised more than the evidence released so far indicates."

Delighted, the same day I wrote "Doomsday is coming for Durham's diabolical duo" and concluded with a political evaluation and a prediction: "The North Carolina Democrat establishment has to cut its losses. Mr. Nifong, don't expect continued protection from the big bosses. The abomination gag order was your last gift. In the future, it will be short shrift. You can't justify what you did, so, of you, they must be rid. To Durham's Diabolical Duo (yes, Crystal and Mike, that means the two of you!), the day of reckoning will come by Fall. The most you can hope to do is stall. At the Duke Three, you shamelessly took your shot. Succeed, it did not."

That prediction came true. There was stalling. The "60 Minutes" expose was delayed from September 24 to October 15 and Mr. Nifong was elected. BUT the day of reckoning came on December 15 (still Fall), when Dr. Brian Meehan, director of DNA Security, the private laboratory Mr. Nifong chose to use for additional DNA testing, testified that the two of them had agreed not to report all the DNA test results.

Within a fortnight, Mr. Nifong dismissed the rape charges and the North Carolina State Bar filed its first ethics complaint against Mr. Nifong. It was based on what Mr. Nifong had done in April and May and should have been filed much sooner, but the day of reckoning had not yet come and the North Carolina State Bar is not known for bringing ethics complaints against district attorneys.

I said "first" because at least one more ethics complaint is on the way. It won't take nearly as long to prepare as the first, since the political atmosphere has changed. North Carolina does not want the United States Justice Department to be investigating "official lawlessness" in North Carolina's criminal justice system, so it is acting, finally.]

"In "Exoneration for the Duke three is coming," posted on August 10, 2006, I not only insisted that the Duke Three "eventually will be exonerated as to the kidnapping, rape and sexual assault charges pending against them," but encouraged the defense to go on offense and lauded a particularly bold defense attorney who had tried to save his client a fortune by avoiding his indictment:

"As Shakespeare wrote in Measure to Measure, Act III, Scene 1, Line 214: 'Virtue is bold, and goodness never fearful.'

"What the defense needs is boldness and strength, not meekness or weakness, The kind of boldness showed by Kirk Osborn, Reade Seligmann's attorney, in moving to remove Mr. Nifong from the case for good cause: 'District Attorney Mike Nifong neglected his duties as a prosecutor to seek the truth and a fair prosecution. He created an actual conflict between his professional duty to search for the truth and his personal, vested interest in getting elected in the following ways: (1) he ignored the actual facts of the case which demonstrate the Defendant [Reade] could not have committed this crime; (2) he made a series of statements to the national media designed to bolster his election chances while prejudicing the case against the Defendant; (3) he improperly injected himself into the photographic lineup proceedings, causing the Durham Police Department to violate its own policies in an effort to provide himself a source of information from which to indict some, indeed any Duke Lacrosse players; and (4) he denied the Defendant a probable cause hearing where the Defendant's actual innocence could have been shown and the gross deficiencies of the prosecution's evidence would have been exposed.'

"Yes, judges have put aside the motion, but they soon will regret it. If the motion is not granted soon, the media may make very good use of it at a propitious moment, to the consternation of the Durham County judiciary as well as Mr. Nifong and his political supporters. Exposing Mr. Nifong and exonerating the Duke Three would be a great public service and great television."

Judge Osmond Smith, who succeeded Judge Kenneth Titus as the judge on the Duke case (and removed the gags that Judge Titus had outrageously (and unconstitutionally) put in the mouths (figuratively speaking) of potential witnesses, including the Duke Three, at the behest of the North Carolina NAACP, on July 17, 2006, did not opt for great television. But he has performed great public services, not only by ungagging (and thereby facilitating the "60 Minutes" expose) but also by ordering the production of the documentation that led to Dr. Meehan's devastating testimony on December 15, 2006, notwithstanding the objections of Dr. Meehan and Mr. Nifong that now can be fully appreciated.

In " The price of D.A. Nifong's victory will be paid," posted on November 8, 2006, I acknowledged that the anti-Nifong vote had split, allowing Nifong to parlay his overwhelming black support into a plurality victory, while noting: "What is also predictable is that Mr. Nifong will not suppress the truth forever."

He did not.

© Michael Gaynor