Wednesday, December 2, 2009

MSNBC legal analyst needs more than a pretty face... objectivity and fairness would be a good start

Susan F. Filan, senior legal analyst for MSNBC TV, authored an online editorial in mid-June 2007, titled: "Nifong's punishment is extreme, appropriate." Although opinion pieces have a bit more leeway than news articles, they should at least consist of facts, statements should be substantiated within the text, and there should be a modicum of objectivity. In fact, the entire article is misleading, inaccurate, and flagrantly biased, beginning with her initial premise that disbarment of a lawyer is as rare as a "unicorn sighting." Nothing could be further from the truth. Since its inception in 1933, the North Carolina State Bar has disbarred thousands of attorneys. According to their own web page posted in the past, approximately 350 attorneys were disbarred during a ten year period, an average of nearly three a month. This blatantly false statement is made for the purpose of making former Durham District Attorney Mike Nifong's disbarment reflect more harshly on his actions in the Duke Lacrosse case.

Had Ms. Filan stated that disbarment of prosecutors is as rare as "unicorn sightings," then that would be right on. During its 76 years in existence, the North Carolina State Bar has only disbarred one prosecutor... Mike Nifong. This, despite the fact that North Carolina lags just behind Illinois and Louisiana in the number of death row inmates who have been exonerated. Many of them, such as Alan Gell, were convicted due to prosecutorial misconduct by their prosecutor (in this particular case, David Hoke, who is now serving as assistant director of the North Carolina Administrative Office of the Courts). However the state, the Duke Lacrosse defense attorneys, and the media, including Ms. Filan, purposely keep the fact that Mr. Nifong is the only prosecutor to be disbarred hidden from the public. That is what makes his treatment so selective, also when you adopt our view which is that Mr. Nifong did nothing wrong in pursuing prosecution in the Duke Lacrosse case.

Ms. Filan presumptuously states that Mr. Nifong will not receive his pension and not be able to retire, which is exactly what he is doing. And, he is not starting "from scratch" as Ms. Filan again falsely predicted. The article by Ms. Filan is filled with a lot of baseless speculation (or "bs"), and misleading and false statements. Most outrageous is the accusation that Mr. Nifong used the Duke case to get re-elected. What information does she have to base this upon? The only television ad I recall appearing during the campaign season which used the Duke Lacrosse case for his/her advantage was run by Attorney General Roy Cooper... "The Duke Lacrosse Decision." In prosecuting the Duke Lacrosse case, Mr. Nifong was merely doing his job. By suggest that performing his duties as district attorney while running for re-election is a conflict of interest is absurd. Does she expect Mr. Nifong to remain idle until the election returns are in? F. Lane Williamson of the State Bar also buy into this ridiculous belief, which they both know to be false. These statements are made purely to mold the impressionable minds of the lay public.

Ms. Filan really gets in the gutter when she accuses Mr. Nifong of using his son as a ploy to gain sympathy, leniency, and pity. I seen nothing wrong with a knowledgeable older teenage son wanting to show support for his father by attending his hearing. What I find reprehensible is Ms. Filan's attempt to spin this positive family gesture into something sinister. It is Ms. Filan, not Mr. Nifong, who is guilty of taking advantage of Mr. Nifong's son by needlessly bringing it up in her article in order to get in yet another cheap shot at Mike Nifong. Ms. Filan's actions here are truly shameful, and unbefitting a respectable news outlet.

One of the most ludicrous accusations penned by Ms. Filan is that Mr. Nifong damaged the reputation of Duke University. I would like to know how? She also insinuates that he damaged the reputation of the sport of lacrosse? Again, how?

I don't have a law degree, but I did take a civics class in high school, and I learned about the three different branches of government: executive, legislative, and judicial. An attorney general, who belongs to he executive branch, cannot make a judicial pronouncement. Yet the media and Ms. Filan give Roy Cooper's "innocent" proclamation the validity as that coming from a judge or jury. This is wrong, period! She also claims that Mr. Nifong damaged the lives of three "innocent" young men. How? They never spent one day in jail, they each received $7 million from Duke University in an out-of-court settlement for reasons unbeknownst to me, they are heroically depicted in books, there is an upcoming HBO movie about these wonderful lads, and individually, Collin Finnerty's celebrity moved a judge to expunge an assault charge from his record. Furthermore, they have all continued on with their lives, one graduating, the other two being offered reinstatement at Duke but deciding to enroll in other prestigious institutes of higher learning with lacrosse teams. Also, the families of these boys are currently seeking an additional $10 million from the cash-strapped city of Durham (which has already spent well more than a million dollars to defend). In the annals of North Carolina jurisprudence, there are many far more compelling instances of truly innocent people whose live have been severely damaged, and by and large, they are the disenfranchised, poor, and/or people of color.

One of the most outrageous statements made by Ms. Filan suggests that Mr. Nifong, in prosecuting the Duke Lacrosse case, damaged the public's confidence in the criminal justice system (of North Carolina). Ms. Filan fails to place blame for the public's sour perception of the criminal justice system where it is due... not on Mike Nifong, but on actions of Prosecutors Hoke, Graves, Honeycutt, Brewer, Parker, Wolfe, Keith, Ford, Black, Hardin, McFadyen and a multitude of others. Hoke and Graves won a conviction by withholding exculpatory evidence which resulted in an innocent man being convicted of capital murder and spending more than nine years in jail. Bill Wolfe charged the teenager James Arthur Johnson who solved the Brittany Willis murder, rape, kidnapping, and armed robbery with those crimes based solely on the word of the killer, who implicated Johnson only after investigators told him that Johnson "snitched" on him. After the killer recanted, Wolfe brought forward two "eyewitnesses," both with connections to the police department. These witnesses disappeared when media scrutiny became a factor. Johnson served 39 months in jail without a trial before charges were finally dropped by a special prosecutor. Michael Parker charged mentally retarded Floyd Brown with murder based on a confession which experts said Brown could not possibly made. Brown was held for fourteen years without a trial for the murder, and charges were reluctantly dismissed. Prosecutor Tom Ford tried to force Gregory Taylor to falsely implicate a black suspect for a murder. Ford threatened Taylor that if he did not cooperate, then he would charge Taylor with the crime (which is what he did). Without cause and no physical evidence linking Gregory Taylor to the crime, Ford won a conviction against him based on solely on the testimony of a jailhouse snitch and a prostitute. Their testimony was given in exchange for a decrease in their jail sentence, a fact which the prosecutor willfully withheld from Taylor's defense attorney. Prosecutors were so incensed with Theodore Jerry Williams for complaining about the District Attorney, that correction guards beat him up while in custody, his face pulverized and arm broken. They then charged Williams with assaulting a guard. When the case was dismissed because the prosecution destroyed material evidence that the defendant had requested, Attorney General Roy Cooper appealed. These are only a few of the cases that shed a disfavorable light on the North Carolina justice system. Not Mr. Nifong's actions in the Duke Lacrosse case.

Mr. Nifong's actions in prosecuting the Duke Lacrosse case were well within the acceptable standards practiced by other prosecutors. He did not withhold evidence, as the defense attorneys had all DNA lab evidence no later than October 27, 2006, at a time when a court date had yet to be set. In addition, the DNA evidence Mr. Nifong is accused of "withholding" was not exculpatory, as the defense attorneys and media would have the public believe. Mr. Nifong did not lie to the court when he stated that "this is the first that I have heard of this situation." He was without a doubt referring to the first he had heard that the defense attorneys had accused him of withholding evidence. Chairman of the Disciplinary Hearing Commission F. Lane Williamson is no mind reader, and a reasonable person would not accept his interpretation of Mr. Nifong's statement over Nifong's own interpretation. The statement itself was not material and should never have been given the attention it was given, however, the State Bar was so desperate to find a reason to disbar Mr. Nifong that they grasped at all straws. Finally, pre-trial statements made by Mr. Nifong were benign, made prior to indictments being handed down, and were intended to encourage witnesses to come forward. The majority of pre-trial statements made to the media were done so by the attorneys of the Duke Lacrosse defendants, yet Ms. Filan wants to accuse Mr. Nifong of going "Hollywood" and trying the case in the press.

If Mr. Nifong was guilty of any wrongdoing in his prosecution of the Duke Lacrosse case you could not tell by reading Ms. Filan's article. Never once did she explain what he did that was deserving of disbarment. She is not alone, because law professors at Duke University School of Law are unable to explain why Mr. Nifong was disbarred. I asked more than two dozen of them, and they were even afraid to discuss what has become a taboo topic. Taboo because the attorneys, and individuals with a knowledge and understanding of the issues surrounding Mr. Nifong's disbarment, know that the actions by the North Carolina State Bar are selective and unjust. Had the Bar's disbarment of Mr. Nifong been justified, attorneys and law school professors would not be hesitant to enter into dialogue about it.

I have no problem with opinion pieces that are accurate and based on facts, however I take umbrage when such statements are based on lies, rumor, unsubstiated pronouncements, and baseless speculation. In her article "Nifong's punishment is extreme, appropriate," MSNBC Senior legal analyst Susan Filan not only does a disservice to her professions in the legal and media arenas, but an even greater disservice to the impressionable media consuming public. The article is a disgrace.

That said, I believe in fair play, and I would like to offer Ms. Filan the opportunity to respond on our blog site (, our website (, or in any other venue or forum over which the Committee on Justice for Mike Nifong has control. Any response would be published in its entirety without editing or direct rebuttal. Shortly after the posting of this blog, I will send by postal mail an invitation to Ms. Filan asking for a reply not only to issues covered in her article and this blog, but on any other related or unrelated subjects upon which she may wish to expound.


JSwift said...

Although opinion pieces have a bit more leeway than news articles, they should at least consist of facts, statements should be substantiated within the text, and there should be a modicum of objectivity.

I agree. I suggest that you hold yourself to the same standard.

I noted the following on November 23. You have not yet responded to specific points by including "statements [that are] substantiated."

An excerpt from my earlier comment follows [I have added cross references to a number of my prior comments for your convenience; the November 5 comments were posted anonymously, a point I made on November 7.]:

"You demonstrate conclusively that you fail to understand basic legal concepts and you either do not know the facts of the Duke case or you simply ignore them when those facts are inconvenient. In short, you have made yourself into a laughingstock.

I have noted that you constantly make numerous errors in your posts. Indeed, you make so many mistakes that you complain that I ask for too many corrections (I do not even attempt to identify all of your errors). Yet you make no effort to be more accurate or even to learn from your mistakes.

I suggested that, unless you are remarkably uniformed (a possibility I do not discount), some of your statements bordered on dishonesty. I identified the most egregious example of what I considered to be a potentially dishonest statement [November 12 5:16pm; November 15 7:28pm].

I noted that other statements omitted so much crucial information as to be completely misleading. Again, I identified the most egregious examples [November 5 6:30pm; November 12 5:16pm: November 15 11:54am].

I have shown that you demonstrate no understanding of basic legal concepts. Again, I identified the most flagrant examples [November 5 6:22pm; November 5 6:27pm; November 5 6:29pm; November 5 6:32pm; November 5 6:33pm; November 10 5:17pm; November 12 5:16pm; November 13 7:21pm; November 18 4:43pm; November 20 7:05pm].

I noted that I find the hypocrisy with which you apply a double standard to be absolutely stunning. I provided examples of this double standard [November 5 6:23pm; November 5 6:24pm; November 5 6:26pm; November 5 6:32pm; November 10 5:17pm; November 15 11:54am; November 16 5:14pm]. You clearly do not believe that Mr. Nifong is subject to the same rules you apply to other prosecutors."

You have had almost four weeks to respond to my November 5 comments. You have failed to do so with specifics (although you have had time to make seven new posts and several comments since those comments were first posted).

I assume from your extended silence that you do not object to my characterization that some of your statements (1) border on dishonesty; (2) omit so much crucial information as to be completely misleading; and (3) demonstrate no understanding of basic legal concepts. Despite your denial of my allegation that you apply a double standard, you fail to explain any of the specific examples I provided. Until you do so, my characterization of your hypocrisy as absolutely stunning will stand.

Once again, I suggest that you apologize to your readers.

Nifong Supporter said...

To JSwift:

Your lengthy comment mentioned that I have made dishonest statements, yet, and made references to a number of comments posted. Why not just write down what you consider to be the most egregiously dishonest statement that I have made, and I will answer it. I'm not going to go trapsing around trying to pull up old comments... and I'm not going to apologize. For What?

As I have stated in the past, I am busy (writing new blogs, producing the next Episode of "Super-Duper Cooper", maintaining the website, writing letters, sending e-mails, etc.). I cannot drop what I'm doing to appease you. Anyway, send what you believe to be a dishonest statement, not a reference.

Walt said...

"During its 76 years in existence, the North Carolina State Bar has only disbarred one prosecutor... Mike Nifong. This, despite the fact that North Carolina lags just behind Illinois and Louisiana in the number of death row inmates who have been exonerated. Many of them, such as Alan Gell, were convicted due to prosecutorial misconduct by their prosecutor (in this particular case, David Hoke, who is now serving as assistant director of the North Carolina Administrative Office of the Courts)."

Once again, you are arguing that two, or more wrongs make a right. Nifong's misconduct stands on its own. The fact that Hoke and Graves were not disbarred, as they should have been, does not excuse Nifong's misconduct. Unfortunately, it does explain why he thought he could get away with it.


Walt said...

"I don't have a law degree, but I did take a civics class in high school, and I learned about the three different branches of government: executive, legislative, and judicial. An attorney general, who belongs to he executive branch, cannot make a judicial pronouncement."

When the framers of our constitution were drafting that document, there was a great deal of dispute about the executive or judicial nature of the Attorney General. In the United Kingdom, as there is no distinction between judicial, legislative and the executive, it is not an issue, thus our framers can be forgiven for not being as clear as they might have been. Today, we treat the Attorney General, especially when functioning as a prosecutor as having both Judicial responsibilities and executive responsibilities. Every prosecutor or District Attorney must make an initial and a series of continuing decisions about the innocence of defendants before them. It is always within the discretion of the prosecutor to determine that a defendant is innocent and it would be a miscarriage of justice to continue prosecuting them. It is rare when, as in the lacrosse hoax, that the evidence is overwhelming that the defendants are innocent. Yet, that is the situation, the evidence is overwhelming. One has a time stamped photo alibi. None of the defendants is identified by the physical evidence. The state's only identification evidence is the product of numerous flawed lineups. The victim's version of events is ever changing and uncorroborated by any other witness. Some of Crystal's versions of events are impossible to reconcile with the laws of physics. If ever there was a case that should have been dismissed with a declartion of innocence, this was it.


JSwift said...

On your November 12 post, you made the following assertion:

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

I commented: "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."

On November 13, you responded, ignoring the substance of my comment and providing no justification:

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

As you know, "exculpatory" evidence is evidence that tends to establish the innocence of the accused. Exculpatory evidence need not be absolutely conclusive. It need not prove beyond all doubt the innocence of the accused.

You demonstrate that you properly understand this concept in your discussion of other cases.

In this case, however, you appear to insist that evidence not only prove beyond all doubt that the accused are innocent of the specific crimes Ms. Mangum alleged, but that it must prove beyond all doubt that the accused are innocent of other possible variations of those alleged crimes.

First, your statements are false.

With your medical background, you should know that. You feign a lack of understanding of DNA evidence. DNA is left not only through the deposit of semen; it can be left through skin cells, perspiration, saliva, dandruff, etc. A sexual assault as described by Ms. Mangum, except that none of the attackers ejaculated or all used condoms, would nevertheless have left the attackers' DNA. This DNA would have been found in an immediate SANE examination.

Second, your statements ignore the facts of this case.

Ms. Mangum alleged that her assailants had ejaculated and did not use condoms. As I have pointed out previously, the lack of DNA evidence showed that Ms. Mangum's specific allegations are demonstrably false. Evidence that specific allegations are demonstrably false, calling into question the credibility of the accuser is clearly exculpatory. This is particularly true when there is essentially no other evidence to support the accuser's allegation.

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 showed that he did not believe that Ms. Mangum was a credible witness.

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

Your statements that the lack of a DNA match to any of the defendants in this case was not exculpatory are utterly preposterous and completely indefensible.

I tried to give you the benefit of the doubt. I explained why your first statement was incorrect. You simply embellished it with no reasoning. You refused to address any of the points I raised in refuting it.

You criticize Ms. Filan for her failure to substantiate her statements. Yet you make the same mistake. Even when your statements are challenged, you refuse to do so.

I suggest that you retract these statements. If you choose not to do so, you least owe your readers an explanation why evidence that demonstrably disproves the specific allegation made by Ms. Mangum is not exculpatory and why Ms. Mangum's credibility is unimportant in a case with essentially no other evidence.

A mere repetition of your statement without explanation yet again is insufficient.

unbekannte said...

Hey, Sidney Harr de Harr Harr?

If you want to feel you are importang and making a difference, why don't you do something important, like manning a Salvation Army kettle for a few hours or build a Habitat for Humanity house.

You are trying to convince the world that an obviously corrupt ex prosecutor is actually ok. You are trying to convince people that this phony crime actually happened or that three obviously innocent men are guilty.

Get a life

unbekannte said...

Sidney Harr de Harr Harr.

I wish to touch upon the subject of the DNA, a subject which shows how abysmally ignorant you are of due process in this country. An individual charged with a crime is presumed innocent until and unless he/she is proven guilty of the crime beyond reasonable doubt. This has to be done in a fair trial before an unbiased judge and jury, or before a judge alone.

Your attitude toward the DNA evidence, or lack thereof, is that it did not rule out the occurrence of a crime. So what. This is not an exercise in internal medicine in which the internist must rule out all pertinent negatives before establishing a diagnosis.

If the prosecutor believes a crime has been committed, his obligation is to rule in the crime. He has to establish that a crime did occur. How did the lack of DNA evidence establish that a crime did occur? What evidence did Nifong have that a crime did occur? More importantly, what evidence did he have that created reasonable doubt about the crime?

Again, I remind you of the North Carolina Open Discovery law, the Brady versus Maryland decision, that a prosecutor who has evidence which raises doubt about a crime, doubt aabout the guilt of a suspect, must be given to the suspect. The prosecutor violates the law if he attempts to conceal or suppress such evidence, which is what decent(HA) honorable(HA HA) distinguished(HA HA HA) exemplary(HA HA HA HA) minister of justice(in the words of Maynard G. Krebs, surely you jest) Mike Nifong tried to do.

When you try to justify your hero, you not only fall flat on your face, you first go into a field of mud and then fall flat on your face.

JSwift said...

As you know, I earlier characterized some of your statements as bordering on dishonesty, with the caveat that you may simply be remarkably uninformed (a possibility I noted that I do not discount). You object to this characterization, but to date you have done nothing to dispel it.

You requested on December 3 that I provide the actual statements to which I referred. In response to your request, on the same day I posted a comment in which I included the actual statements to which I objected. I also explained my objections, an explanation largely contained in earlier posts. You have never addressed the substance of those objections.

I apologize for the earlier “lengthy comment.” I have noted previously that you make numerous mistakes, and a “lengthy comment” was needed simply to list the references to my posts in which I had noted some of them. You have been extremely slow in acknowledging your mistakes. I would urge you to correct your errors on a timelier basis. Otherwise some may conclude that you are not credible.

I apologize further for not including the actual statements I referenced. I was unaware that you are too busy to follow up references to recent comments on your own blog.

I recommend that you show the same courtesy to your readers and provide links to articles on which you comment and to sources you use to support your assertions. In that way, your readers can understand more fully the context. Many of your readers are also busy, and asking them to research those articles and sources is duplicative.