Thursday, November 12, 2009

CNN legal observer Kendall Coffey gets it all wrong on Mike Nifong

In a January 1, 2008 posted commentary titled: “The Best and Worst of a year of celebrity justice,” former U.S. Attorney Kendall Coffey got it all wrong with his blurb about former Durham District Attorney Mike Nifong. The Miami, Florida commentator’s statements were as far off base as those made by MSNBC legal analyst Susan F. Filan, who claimed that Mr. Nifong damaged the sport of lacrosse and damaged the reputation of Duke University when he prosecuted the Duke Lacrosse case.

Although the column did not go into depth about Mike Nifong’s role in the Duke Lacrosse case, he begins with a zinger by labeling the prosecution as being one about a “bogus sexual assault.” The media has gone out of its way to portray the alleged sexual assault as being “bogus” despite the fact that the accuser/victim has always maintained that it did occur. The media has never used the term bogus to describe the prosecutions of Alan Gell (for a murder which he could not have possibly committed), James Arthur Johnson (who solved a heinous murder), and Erick Daniels (a 14 year old prosecuted for an armed robbery based on the shape of his eyebrows from a photo in a school yearbook). The bogus tag is used to discredit the prosecution against the three Duke University students who come from families of wealth, status, and privilege, and the media, in general, has definitely assumed a biased position in favor of the student defendants.

Mr. Coffey then makes a statement that is both true and false. He accurately states that the main excuse used by the North Carolina State Bar to disbar Mr. Nifong is because of his “failure to promptly disclose DNA (results)…” Unlike the majority of media types and Nifong detractors, he did not follow the universally accepted mantra that Mr. Nifong withheld DNA evidence. To his credit, Mr. Coffey stated that the excuse used was that Mr. Nifong did not turn DNA evidence over to the prosecution quick enough. Never mind, that when all DNA evidence was received by the defense team on October 27, 2006, a trial date had not even been set. The Duke Lacrosse defense had adequate time to mount a defense utilizing those DNA results. Compare this with Prosecutor Jim Hardin who withheld from defendant novelist Mike Peterson’s defense team the knowledge of the existence and testing performed on a possible murder weapon. Such lack of disclosure by the prosecution caused irreparable damage in building the best possible defense on Mr. Peterson’s behalf.

Secondly, Mr. Coffey refers to the delayed DNA evidence provided by Mr. Nifong to the Duke Lacrosse defense team as being “testing that exonerated the defendants.” Nothing could be further from the truth. Lack of DNA test results from the accuser’s rape kit exam being linked to any of the Duke lacrosse players was not exculpatory… its absence did not rule out the possibility that a sexual assault occurred. This is unlike the exculpatory evidence withheld by Prosecutor David Hoke from Alan Gell’s defense attorney. In that case, seventeen independent eyewitnesses gave statements that they saw the murder victim alive during a period when his suspect, Mr. Gell, was incarcerated on an unrelated charge, and could not possibly have committed the crime. Although these exculpatory statements were available well before trial, their existence was never disclosed by Prosecutor Hoke, and it never came to light until nine years after the defendant was convicted and served time in prison, half on death row.

Next, Mr. Coffey writes that Mr. Nifong was convicted and served a day in jail for failing to deal honestly with the court. If you’re looking for a bogus charge, the contempt charge against Mr. Nifong is about as fitting as one can find. Mr. Nifong’s explanation about a statement (which had no bearing on the case) was ignored by the judge, who sided with the defense team’s interpretation of the innocuous statement made by Mr. Nifong in court… “This is the first that I’ve heard of this situation..” It is apparent that the situation he is referring to is the complaint of withholding evidence lodged against him by the defense. Instead, the defense claimed that Mr. Nifong was referring to the first that he heard of certain DNA test results. Such a claim doesn’t make sense, and for him to serve jail time because of it is a travesty of justice.

Again, going with the media, Mr. Coffey refers to the Duke Lacrosse defendants as being “falsely accused.” I presume this is based on Attorney General Roy Cooper’s proclamation that the three Duke Lacrosse defendants were “innocent.” Such a pronouncement coming from a prosecutor, much less an attorney general, is unheard of. Attorney General Cooper definitely overstepped his boundaries, yet the media, including Attorney Kendall Coffey, gives credence to Cooper’s judgment instead of questioning its appropriateness and validity.

Mr. Coffey ponders “whether Nifong’s high-profile disaster is sufficient to give other prosecutors a chill.” It will if they, like Mike Nifong, believe in following the principle of “equal justice for all,” instead of the current North Carolina tenet of “selective justice based on Class and Color”… the latter which was reinforced by the persecution of Mike Nifong. To put things in perspective, the ethics complaint was filed by the North Carolina State Bar to create a conflict of interest for the purpose of forcing Mike Nifong off the case. Mr. Nifong was too independent, and would not let the charges against the Duke students to be swept under the rug, as was standard protocol prior to his appointment as Durham district attorney. As a result, he, like the independently minded Archbishop of Canterbury Thomas Beckett who defied England’s King Henry II, suffered the consequences at the hands of the state and the media. Likewise, he was used to set an example for other prosecutors. Lessons learned for North Carolina prosecutors to maintain their law license in good standing would be as follows: follow the state’s tenet of “selective justice based on Class and Color;” don’t defy protocol or positions of the state; and don’t go against the North Carolina State Bar, the unregulated agency that is capable of arbitrary, selective, and unjust disbarment.

In prosecuting the Duke Lacrosse case, Mr. Nifong was honorably performing his duties as district attorney. The assertion that his actions in doing so were politically motivated is nothing but baseless speculation. To make this reckless promulgation is to suggest that while running for re-election, Mr. Nifong or any incumbent candidate for district attorney should suspend all professional activity on grounds that his/her acts could be construed as pandering to the public for votes.

Finally, CNN’s special observer Kendall Coffey concludes that Mike Nifong makes a good poster-boy for prosecutors who pursue baseless charges. Obviously, I strongly disagree, and instead would offer the following nominees: Prosecutor David Hoke (who withheld from defense attorneys exculpatory evidence which clearly exonerated the defendant, Alan Gell); Prosecutor Bill Wolfe (who, without probable cause, charged James Arthur Johnson with murder, rape, kidnapping, and armed robbery even though Johnson heroically supplied information to police which solved the crimes); and Prosecutor Freda Black (who without probable cause convicted a 14 year old boy on armed robbery charges based on the shape of his eyebrows from a school yearbook, despite the fact he did not fit the victim’s description and another inmate who was later jailed and fit the description confessed to the crime).

By using wording such as “falsely accused,” “bogus sexual assault prosecution,” “testing that exonerated the defendants,” and “politically motivated, baseless charges,” Kendall Coffey does a superb job in subtly molding the minds of the public in generating sympathy for the three Duke Lacrosse defendants, and overt hostility against their prosecutor, Mike Nifong. For those who are not knowledgeable about the case, who are not fair-minded, who accept what the media spews out as truthful without question, and who are not objective when it comes to the Duke Lacrosse case, the Jedi-mind trick is working… and it is very effective.


unbekannte said...

In my opinion, you are totally insane

JSwift said...

The media has gone out of its way to portray the alleged sexual assault as being "bogus" despite the fact that the accuser/victim has always maintained that it did occur.

A number of journalists have reviewed the entire case file. Others reviewed the major portions of that file released in connection with Mr. Nifong's disbarment hearing. They have found essentially no evidence to support Ms. Mangum's accusation and much to contradict it.

As you know, unsupported accusations contradicted by other evidence are not sufficient to proceed with prosecutions. "Probable cause" is required to make an arrest.

As you also know, Mr. Nifong has stated that there is "no credible evidence" to support the charges. Mr. Nifong's statement alone is sufficient to conclude that he did not have "probable cause" and that the prosecution therefore was "bogus."

Lack of DNA test results from the accuser's rape kit exam being linked to any of the Duke lacrosse players was not exculpatory

This statement is false.

No rational person believes that the lack of positive DNA test results taken immediately after an alleged rape in which the attackers did not wear condoms "was not exculpatory." The failure to find DNA that matched any of the players provides strong evidence that tends to establish the innocence of the defendants accused in such an attack.

I suggest that you refrain from engaging in such hyperbole.

. its absence did not rule out the possibility that a sexual assault occurred.

It did, however, provide evidence that many of Ms. Mangum's specific allegations were demonstrably false.

Evidence that certain allegations are demonstrably false calls into question the accuracy of the remainder of the complaint and raises questions regarding the credibility of the accuser. These questions should be fatal in a case that relies almost exclusively on the unsupported testimony of a complaining witness. There was essentially no evidence to support Ms. Mangum's accusations and much to contradict them.

Mr. Coffey refers to the Duke Lacrosse defendants as being "falsely accused." I presume this is based on Attorney General Roy Cooper's proclamation that the three Duke Lacrosse defendants were "innocent."

I presume that Mr. Coffey reached this conclusion as a result of his independent review of the available evidence. As you know, most of the DPD case file was released in connection with Mr. Nifong's disbarment hearing.

In prosecuting the Duke Lacrosse case, Mr. Nifong was honorably performing his duties as district attorney.

You have repeated this assertion continuously, but have provided no support for your assertion. Consequently, one must conclude that your assertion "is nothing but baseless speculation."

I challenge you to support your "baseless speculation" with credible evidence.

Nifong Supporter said...

To unbekannte:

I appreciate you taking the time to respond, but I wish you would go into a little more depth to substantiate your statements.

Nifong Supporter said...

To JSwift:

The point that I was making is that many media types, not just Mr. Coffey, bandy about the term "bogus" when talking about the sexual assault in the Duke Lacrosse case. These same individuals are extremely reticent to use that term with other cases. I have never heard the media refer to the prosecutions of Alan Gell, James Arthur Johnson, Erick Daniels, Jonathan Gregory Hoffman, Floyd Brown or others as being "bogus." Are you aware of any prosecution case other than the Duke Lacrosse case in which that adjective was used?

With regards to the lack of DNA evidence being exculpatory, such would apply only if the narrowest definition of sexual assault applied... intercourse with ejaculation and no condom.

The "falsely accused" phrase can be directly attributed to the attorney general's statement that the boys were "innocent." I doubt that the Durham Police Department report contained a statement that the defendants were "innocent."

How do you feel about Attorney General Cooper making the statement that the three Duke Lacrosse defendants were "innocent." Do you feel that it is valid? Do you feel that it is appropriate? Do you feel that it carries the same weight as such a statement being made by a judge? The media has given it credence and legitimacy that it does not deserve.

To support my view that Mr. Nifong acted honorably in performing his duties as district attorney in this case, consider the following:
1) The Duke Lacrosse team had a long history of raucous parties;
2) The Duke University president had warned the Duke lacrosse coach to rein in his players;
3) Fifteen of the 47 member lacrosse team roster had criminal run-ins, which were swept under the rug with assistance of a Duke attorney, referred to as the "Fixer";
4) Most of the aforementioned criminal charges were related to drunken and disorderly conduct, including underaged drinking and public urination;
5) The Duke lacrosse player who called the escort service did so under false pretenses, using a false name, and stating that it was for a small bachelor party of four or five;
6) At the party, booze flowed, and there was underaged drinking;
7) After the two African American exotic dancer stopped their routine minutes after it began (due to sexually degrading comments), the party-goers, who paid $800 and expected a two hour performance, were angry and upset;
8) When leaving, the dancers were bombarded with racial slurs by the party-goers;
9) One of the dancers claimed that she was sexually assaulted by several individuals at the party, and the Durham Police Department began an investigation;
10) When District Attorney Mike Nifong heard about the incident with gang-participation and racial overtones, he took the lead in the case;
11) The alleged victim positively identified two of the lacrosse players with 100% certainty, and a third with 90% certainty;
12) Charges were brought against the two players identified with 100% certainty;
13) When DNA from the accuser's false fingernail was found to be consistent with that of the defendant identified with 90% certainty, charges were brought against him, as well.

Under the circumstances, and as a prosecutor, it was his duty to bring charges against those individuals, even though they came from families of wealth, status, and privilege.

unbekannte said...

BRAVO!!! Kendall Coffey

JSwift said...


I thank you for your reply.

However, I was disappointed by your apparent unwillingness to address the specific points I raised. Rather than focusing on specifics, you continue to rely on innuendo, general statements and mischaracterization of the facts of the case. Unless you are remarkably uninformed, some of your statements border on outright dishonesty.

Moreover, I find the hypocrisy with which you apply a double standard to be absolutely stunning. Clearly, you do not believe that Mr. Nifong is subject to the same rules you apply to all other prosecutors.

I will address a number of your remarks in this and subsequent posts. Some of your observations are irrelevant to the points I raised and do not therefore merit a response.

You earlier had expressed the view that Mr. Nifong was justified in his decision to file charges with “no credible evidence” simply because one could "not necessarily exclude the possibility that a credible case could be built against the defendants" at some point in the future. For the reasons I explained, I believe this argument to be utterly ridiculous and completely indefensible. Because it is impossible to “prove” a negative, this standard would permit a prosecutor to proceed with any case, no matter how baseless and arbitrary. You have not responded.

I await your reply.

Nifong Supporter said...

To JSwift:

I believe that I responded specifically to reasons why Mr. Nifong was justified in pursuing the prosecution in the Duke Lacrosse case. In my previous comment, I listed thirteen points to support my view that the Lacrosse prosecution was justified.

You mentioned that some of my statements "border on outright dishonesty." I would like you to let me know to which specific statements you are referring.

I would like you to answer the following simple question if you can: "Who is more deserving of being disbarred: Mike Nifong for his prosecution of the Duke Lacrosse case, or David Hoke for his prosecution of Alan Gell (to remind you, Mr. Hoke withheld exculpatory evidence from Mr. Gell's attorneys. Gell was convicted and sentenced to death, and spent nine years in prison before the injustice was exposed). All I request is a simple answer as to who is most deserving of being disbarred... Nifong or Hoke. Give me an answer, if you can.

JSwift said...

Neither Mr. Nifong nor Mr. Hoke is fit to be licensed to practice law. I will not "force rank" their misconduct.

I agree with the NC Bar's decision to disbar Mr. Nifong. As I have noted previously, the failure of the NC Bar to disbar Mr. Hoke and Ms. Graves was a total abdication of their responsibilities.

Anonymous said...

And the wheels on the bus goes round and round.....

Rhonda Fleming
Cleveland, Ohio
Sister of Allen Jackson Croft Jr.
Murdered may 11, 2005 in Durham NC

JSwift said...

With regards to the lack of DNA evidence being exculpatory, such would only apply if the narrowest definition of sexual assault applied…intercourse with ejaculation and no condom.

Unless you are remarkably uninformed, this statement borders on dishonesty.

First, this statement is false.

With you medical background, you should know that. You feign the same lack of understanding of DNA evidence exhibited by Ms. Levicy, the SANE-in-Training. DNA is left not only through the deposit of semen; it can be left through skin cells, perspiration, saliva, dandruff, etc. You may recall that the DNASI tests showed a non-exclusion with Dr, Meehan. I do not believe that anyone has alleged that Dr. Meehan and Ms. Mangum had engaged in intercourse with ejaculation and no condom.

Second, this statement is disingenuous.

Ms. Mangum specifically alleged that her assailants had ejaculated and did not use condoms. As I have point out previously, the lack on DNA evidence demonstrated that Ms. Mangum’s specific allegations were false. Evidence that specific allegations are demonstrably false and calls into question the credibility of that witness is clearly exculpatory. That would have been the basis of the defense.

By changing the allegations from those that had been disproved by the lack of DNA evidence to vague accusations that could not be disproved, Mr. Nifong indicated clearly that he did not believe that Ms. Mangum was a credible witness. At best, she was confused and had no memory of what had occurred.

However, when specific allegations are shown to be false, Mr. Nifong is not then free simply to invent new allegations without specific evidence to corroborate those new allegations. He had essentially no other evidence.

As I explained earlier, "exculpatory" evidence is evidence that tends to establish the innocence of the accused. Exculpatory evidence need not be conclusive.

Your statement that the lack of a DNA match in this case was not exculpatory in this case is utterly preposterous and completely indefensible.

I suggest that you apologize to your readers and retract this statement.

Sydney. I ask you:

Why do you believe that evidence can simply be disregarded when it fails to confirm your beliefs?

JSwift said...

Are you aware of any prosecution case other than the Duke Lacrosse case in which that adjective was used?

I have read articles and commentary covering other cases that were highly critical of the prosecution. I do not intend to research this point.

The failure of the media to condemn adequately other prosecutors does not excuse Mr. Nifong’s conduct in this case.

As you know, Mr. Nifong deserves much of the credit or blame for launching this case as a media spectacle; he gave dozens of interviews in which he expressed his certainty that a horrific crime had occurred. Many of the statements he made in these interviews are inconsistent with the evidence contained in the DPD case record. Mr. Nifong has never explained these discrepancies.

Despite your characterization of a rabidly anti-Nifong media bias, as you certainly must know, the initial media coverage was almost uniformly favorable to Mr. Nifong. The media loved the “man bites dog” nature of the story and the narrative it fostered. Some media turned on Mr. Nifong when it became clear to them that he had pushed a case with “no credible evidence” (these are Mr. Nifong’s words). Others continued the mantra that “Nifong must have something.” Many simply dropped their coverage because it did not tell the story they wanted.

After he had helped to create a media spectacle, Mr. Nifong and his supporters can scarcely complain when that spectacle turned on him.

Sydney, I ask you:

Consider a hypothetical. Imagine that discovery in the civil suits confirmed the allegations of Mr. Nifong’s most vociferous critics. (I know you cannot believe that, but humor me.) Imagine that discovery confirmed that Mr. Nifong and the DPD never really believed Ms. Mangum, went through the DNA testing just in case, rigged the April 4 line up simply to select some defendants and studiously avoided evidence thereafter to avoid finding anything that could conclusively prove that Ms. Mangum’s allegations were false. In short, imagine that they attempted to frame the defendants.

Would you feel betrayed (i.e., that you had made a complete fool of yourself) or would you continue to believe that Mr. Nifong was “honorable” (e.g., the lacrosse players had to be taught a lesson; unfounded indictments for felonies is an effective way to curb underage drinking)?

JSwift said...

The alleged victim positively identified two of the lacrosse players with 100% certainty and another with 90% certainty,

This statement omits so much crucial information as to be completely misleading.

In your discussion of other cases, you properly question the validity of flawed or erroneous identifications. You properly criticize Mr. Daniels’ conviction based on an identification of his eyebrows. Although that procedure met the DPD’s guidelines for identification procedures, you criticize the prosecutor for having used an identification she should have known to be flawed. The misidentification of Mr. Cotton resulted in an erroneous conviction, but you fail to allege any procedural errors in the process. Nevertheless, you conclude that the prosecutor is guilty of misconduct simply because the identification was wrong.

You make the assertion in this case that the “alleged victim positively identified” suspects as though the identification was entirely legitimate and raise no questions about its accuracy. At best, you are guilty of tremendous hypocrisy as you apply a different standard to Mr. Nifong than to other prosecutors.

You repeatedly fail to note issues with the accuser’s credibility and the “identification” procedure used. The accuser was tainted. The procedure was rigged. The resulting “identifications” thus have questionable merit.

The accuser had earlier provided descriptions of her alleged assailants on that matched none of the players and failed to identify any of her alleged attackers in two earlier procedures. She changed the details of her accusation repeatedly, with some shown to be were demonstrably false. There was no corroborating witness, physical evidence or medical evidence. The accuser was tainted. Mr. Nifong knew that.

Mr. Nifong designed a procedure he knew violated DPD guidelines and thus was flawed. Any resulting “identifications” would be suspect. He used it nonetheless.

As you know, the procedure contained no fillers, a means to check the reliability of the witness. The procedure was conducted by one of the investigators, able consciously or unconsciously to influence her decisions. The witness was told that all of the men included were thought to have attended the party and were suspects. There were no wrong answers.

In spite of these flaws, Ms. Mangum nevertheless made errors. She selected four men as her three attackers. Gottlieb did not follow up on one of those selected. She identified with “100% certainty” a player known to have been in Raleigh with his girlfriend. Cell phone records, including triangulation, and other evidence confirmed his absence. She recognized other players she had failed to recognize in earlier procedures and failed to recognize some she had previously recognized.

On the other hand, at times, Ms. Mangum showed a remarkable “improvement” in her memory.

She was now “100% certain” that Seligmann was one of her attackers, even though she had identified him earlier with 70% certainty as merely an attendee. She was now “90% certain” that Evans was one of her attackers (albeit with a non-existent mustache), even though she had not remembered him at all previously.

She now “remembered” how certain players had been dressed (coincidentally these players were shown in photographs released by one of the defense attorneys to the local media), even though she had not remembered some of these players at all previously.

Her father accurately “predicted” her success. He announced on Rita Cosby’s show the previous evening that his daughter had already “identified” her assailants.

You repeatedly fail to mention these problems. As you know, flawed procedures beget flawed results. This failure is misleading.

Sydney, I ask you:

Why was Mr. Nifong justified in designing and using a procedure he knew to be flawed? Why were the results of that flawed procedure not tainted? Why do you apply a double standard?

JSwift said...

I doubt that the Durham Police Department report contained a statement that the defendants were “innocent.”

The DPD case record does not contain a statement that the “defendants were innocent.”

On the other hand, as I noted in an earlier post that you have ignored, Patrick Baker, then Durham City Manager, in his report to the City Council, supported the statement by AG Cooper that the defendants were innocent (emphasis added):

“…let me acknowledge the City’s concurrence with Attorney General Roy Cooper’s decision to dismiss all of the charges…as well as his declaration that these young men are innocent of the charges for which they had been indicted. While the criminal proceedings against them have ended, a true and measured analysis and critique of their tortured path to justice is just beginning. 

The ultimate question that will be the legacy of this matter is why it took the criminal justice system nearly thirteen months to reach the conclusion that the allegations of rape, sexual assault and kidnapping were unfounded.”

This statement has not been retracted. The position of the City of Durham and the DPD thus is one of concurrence with Mr. Cooper’s declaration that the defendants were “innocent.”

I am sure that your omission of this statement was merely an oversight on your part.

Sydney, I ask you again:

Why do you fail to revile Mr. Baker for his endorsement of Mr. Cooper’s declaration?

How do you feel about AG Cooper making the statement that the three Duke Lacrosse defendants were “innocent.” Do you feel it is valid? Do you feel it is appropriate?

I agree with Mr. Nifong’s reaction to that statement. As I noted in an earlier post that you have ignored, he made the following statement in his July 2007 apology (emphasis added):

“Mr. Seligmann, Mr. Finnerty and Mr. Evans were entitled to the presumption of innocence when they were under indictment. Surely, they are entitled to more than that now as they go forward with the rest of their lives. And that is what the attorney general tried to give them in his declaration that they are innocent.”

I believe that the declaration of innocence was both valid and appropriate.

I would like to see prosecutors admit their errors more frequently. I would like to see wrongly convicted and accused defendants declared “innocent” when evidence supports that conclusion. Most importantly, I would like to see prosecutors and police punished when they intentionally break the rules. As I noted earlier, honest mistakes can be tragic; dishonest mistakes are indefensible.

Sydney, I ask you:

Why do you believe Mr. Nifong is wrong?

Nifong Supporter said...

To JSwift:

First, let me state that I appreciate you comments and carefully read them, like all comments. However, because I do not respond to all questions you pose to me does not mean that I am ignoring you. There are many reasons I do not respond, chief among them is the fact that I do not have internet at home. I use the computers at the library where the service is free. Computer use at the library is usually busy, and there are time limits for their use. I usually go to the library once or sometimes twice a day. So, with checking e-mail, posting blogs, using twitter, looking up cases and articles, etc. that often does not leave much time for answering comments. Many times I will address questions you pose in new blogs, so that others can also more easily take part.

With regards to the City Manager's statement, he is entitled to his opinion, but he should not be speaking on behalf of the city when concurring with Cooper's proclamation of "innocent." Also, just because he agrees with Cooper's "innocent" proclamation, that does not make it any more valid or legitimate than the original proclamation made by Cooper.

A judge or a jury, hearing the case, would have to make the proclamation that I would take seriously. That did not happen. Although the media, the state, the City Manager, and everyone else gives credence to Cooper's "innocence" proclamation, that does not give it judicial standing, like the proclamation that Alan Gell received by the jury at his re-trial.

Also, JSwift, be sure to reply to my blog posted November 15th. And watch for the questionnaire which should be posted soon on our website: