Wednesday, December 23, 2009

N&O SpinMeister Joseph Neff is at it again

News & Observer staff writer Joseph Neff’s December 22, 2009 front page article titled “Agency raps DA’s office” is a prime example of the double standards used by the North Carolina State Bar and by the media. Mr. Neff is quite accurate when he describes the State Bar’s disciplinary actions against the prosecutors of Alan Gell as being “tepid.” Actually, tepid is an understatement. Gell’s prosecutors actually withheld evidence that resulted in a death penalty conviction of an innocent man who was wrongfully incarcerated for nine years due to prosecutorial misconduct. Mr. Neff goes on to describe the State Bar’s disciplinary action against former Durham District Attorney Mike Nifong as “vigorous,” again, an understatement. The reason for the discrepancy in the degree with which the State Bar goes after its prosecutors, I believe, has to do in large measure to the autonomy of the attorney. Mike Nifong, in pursuing the principle of “equal justice for all,” went against the attorney general, and the Duke University fixer when he would not drop charges in the Duke Lacrosse case. That made Mr. Nifong a target, not unlike Archbishop of Canterbury Thomas Beckett who defied England’s King Henry II. Like Beckett, Mr. Nifong was made to pay a steep price for not kowtowing to the wishes of the powers that be.

What is troubling is that the North Carolina State Bar, as stated by Mr. Neff, would selectively discipline some prosecutors tepidly, while vigorously disciplining others. It is the inconsistency and selective nature of the Bar’s actions that brings its fairness into question. There is no question that Mr. Nifong was given the end-stage disciplinary punishment for trumped up, merit-less accusations of trivial minutiae, and that the prosecutors of Alan Gell were given the mildest sanction possible (a reprimand) for falsely putting a man on death row, and having him spend nearly a decade wrongly in prison. It is not surprising that the prosecutors of Gell, unlike Mr. Nifong, went along with the state’s playbook of “selective justice based on Class and Color.”

Now the double standard use by the media is the blatant act of withholding the identity of the prosecutors of Alan Gell from the public. Those prosecutors, David Hoke and Debra Graves, did not have their names mentioned anywhere in the article. That is because of the conscientious effort by the newspaper to shield them from bad press. This is a tact that is commonly used by the media, especially the News & Observer and Mr. Neff. In many articles on issues of social injustice wherein prosecutors have not acted as “ministers of justice,” the media will refer to their “bad deeds” but not publish their names. It is the absolute contrary when it comes to Mr. Nifong. As in this article, Mr. Nifong’s name is mentioned twice whereas the names of Hoke and Graves are never mentioned, period.

The media further goes out of its way to minimize the egregious actions of prosecutor David Hoke by writing that he “failed to hand over favorable evidence to Alan Gell…”

“Failed to hand over” sounds much more innocuous and more accidental that “withholding” (term used in the article to describe Mr. Nifong’s alleged misconduct). Furthermore, the Meister of Spin describes evidence that Mr. Hoke withheld from the defense as being “favorable.” This is, itself, a joke, because the evidence was prima-facie example of “exculpatory evidence.” Hoke withheld evidence that proved beyond doubt that Mr. Gell could not have committed the murder for which he was eventually convicted. At re-trial when the exculpatory evidence was introduced in the proceedings, the jury, when handed the case, immediately found defendant Gell not guilty.

Mr. Neff states that the Bar prosecuted Mr. Nifong for withholding evidence. The media, in general, has consistently disseminated and perpetuated this lie. Mr. Nifong did not withhold evidence. Like Gregory C. Butler, the Johnston County prosecutor in the Tiffany Bassett case, Mr. Nifong turned over all evidence to the defend attorneys, and he did so well before a trial date was even set. The defense team had plenty of time to work with all the DNA evidence in preparing a defense for their clients. Defendants in the Duke Lacrosse case were not prejudiced in the least by DNA evidence being presented to them in October 2006, instead of May 2006.

The fact is that Mr. Nifong has always utilized an open file discovery policy as a practicing prosecutor, doing so 25 years prior to it being mandated into law. On May 17, 2006, the Duke Lacrosse attorneys asked the courts for a discovery motion. On May 18, 2006, the following day, Mr. Nifong’s office had provided each of the three defense attorney teams with 1,267 pages of documents, a cassette, and a CD. The gathering of these items was not supervised by Mr. Nifong, and was undertaken by staff members who had no inkling of the relevance or value of the items that they were copying in compliance with the discovery motion. In essence, Mr. Nifong would provide the defense with all evidence at his disposal as soon as he became aware of it (not unlike prosecutor Butler).

Mr. Neff also wrongly claims that the Mr. Nifong withheld evidence that the Duke Lacrosse defendants were falsely charged with rape. Although the rape charge was later dismissed by Mr. Nifong, there was no evidence in the possession of the prosecutor or defense that was exculpatory in ruling out the possibility of a sexual assault.

To his credit, Mr. Neff does include the following paragraph: “This failure to produce evidence happens in virtually all complicated cases, said Jim Woodall, district attorney for Orange and Chatham counties, and president of the N.C. Conference of District Attorneys.” However, it begs the question that if it happens all the time in complicated cases, then why is it that Mr. Nifong is the only prosecutor to be disbarred? The answer has to do with the nature of the “selective and unjust system of justice based on Class and Color.”

The article by Joseph Neff has many problems as referenced to above, but despite the spin, the newspaper does deserve kudos for bringing this matter to the attention of the people. Like all media covering legal issues and referring to the Duke Lacrosse case, it needs to be more objective in its reporting (such as being consistent in mentioning/or not mentioning the names of all prosecutors), not biased in gratuitously singling out Mr. Nifong in a negative way, and reporting more accurately and honestly (cease and desist from referring to the Duke Lacrosse defendants as “innocent” and/or “falsely accused”).

The media needs to stop misleading people who believe everything it publishes and airs, and stop insulting the intelligence of those of us who know better.

22 comments:

unbekannte said...

Sidney Harr de Harr Harr:

You have still to explain how you can pass yourself off as knowledgeable about the case when, as you yourself have admitted, you are unfamiliar with the case?

Whatchoo talkin' 'bout, Sidney? said...

Gell's travails were not for naught, Sidney, at least some good did come of it.

1) - Gell's case was instrumental in NC passing their 'open discovery' law; and

2) - it made them re-examine the way they discipline prosecutors, to wit:

Neff -The bar's tepid prosecution of Gell's prosecutors caused the bar to re-examine how it investigated and disciplined prosecutors. In 2007, the state bar made a vigorous prosecution of former Durham District Attorney Mike Nifong for withholding evidence that three Duke lacrosse players were falsely charged with rape. The disciplinary panel took Nifong's law license.

See, it all works out, and we have the Gell case to thank for that.

You have picked the worst possible person to act as the poster boy for your sad campaign against the NC State Bar, Sidney.

Should the Bar have given Nifong a pass, and just decided to start enforcing the NC RPC against prosecutors the next time one of them violated the RPC?

Nifong Supporter said...

To: Whatchoo talkin' 'bout, Sidney?:

Nothing good came of the Gell case, because nothing has changed. Since the Gell case, the prosecutors have continued to withhold evidence, and they are getting away with it because they follow the state's tenet of "selective justice based on Class and Color." Prime example would be Prosecutor Tom Ford who falsely accused Gregory Taylor of the murder of Jacquetta Thomas. Gregory Taylor was convicted on the testimony of a prostitute and jailhouse snitch in exchange for their testimony. This deal made by Ford was withheld from the defense team. And the State Bar refuses to bring disciplinary charges against Mr. Ford. And unlike the Duke Lacrosse defendants, who did not spend one day in jail, Mr. Taylor is serving a life sentence for a murder he did not commit, and has already been wrongly incarcerated for sixteen years. The media and the State Bar want the public to believe that things have changed since Gell's case (names of the prosecutors are usually concealed, as in Mr. Neff's article, to protect them; not so with Mr. Nifong).

Anonymous said...

Why did you say you were not familiar with the evidence gathered in the Duke case?

unbekannte said...

Sidney Harr de Harr Harr:

Why should the Duke Lacrosse players be required to spend any time in jail? They were innocent. And, as you yourself have admitted, you are not knowledgeable about the evidence in the case. You are hardly in a position to dispute their innocence.

Nifong Supporter said...

To Anonymous:

I am not familiar with the evidence collected in the Duke Lacrosse case. The only think I know of the evidence is what I read in the biased media. I was not privy to the interviews, evidence, lab reports, forensic reports, etc. Therefore, I cannot state emphatically whether or not I would concur with Roy Cooper and the SBI's assessment. After all, the SBI could not determine how Timothy Helms, an inmate in solitary received two skull fractures which made him a quadriplegic while in custody... along with welts all over his body consistent with batons. Alvin Keller, the Secretary of Department of Corrections seems to think Helms sustained his injuries when he allegedly fell and hit his head on the concrete floor. Helms states that corrections officers battered his head repeatedly into the concrete wall. So, I don't personally place much credibility in what the attorney general or SBI says.

Whatchoo talkin' 'bout, Sidney? said...

Sidney - I was not privy to the interviews, evidence, lab reports, forensic reports, etc.

Sidney, did you not obtain a copy of the 'big binder' prepared for the NC State Bar trial?

If not, why not? Or availed yourself of all the information online?

If one is ignorant of the evidence at this late date, one has willfully remained so.

JSwift said...

Sidney,

You have now had 24 days to provide the answer you promised on December 3. I have reminded you of your broken promise on two earlier occasions. Your readers and I continue to wait.

This is a repost of a comment posted on December 14 at 5:07pm as an attempt to remind you of your promise.



the attorneys for the players…divulged to the media that DNA failed to connect any of the 47 member team to the alleged attack.

The attorneys correctly viewed the DNA evidence as strongly exculpatory and expected that Mr. Nifong would drop the already public case.

Your reference to the DNA results raises again the question of why you have not replied to my comment.

In the thread for your December 2 post (“MSNBC analyst needs more than a pretty face”), I noted in a December 2, 5:34pm comment: “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].” (The references are to earlier comments to which you did not reply.)

You asked on December 3, 7:24am: “write down what you consider to be the most egregiously dishonest statement that I have made, and I will answer it.

I responded to your request on December 3, 6:27pm:

“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

The remainder of my comment consists of a more complete explanation why “[y]our 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 will not reproduce it here, but ask that you reread it.

I reminded you on December 7, 6:22pm that you failed to provide the answer you promised.

You have had 11 days to respond. I have concluded that you view your credibility as a low priority.

End of prior comment.

unbekannte said...

Sidney Harr de Harr Harr:

How can you consider yourself knowledgeable about the case when you are unfamiliar with the evidence of the case???

Walt said...

"Since the Gell case, the prosecutors have continued to withhold evidence, and they are getting away with it because they follow the state's tenet of "selective justice based on Class and Color." "

Nifong being the worst offender since Hoke and Graves.

"And unlike the Duke Lacrosse defendants, who did not spend one day in jail, Mr. Taylor is serving a life sentence for a murder he did not commit,...."

Taylor's so called witness is a serial liar who has claimed to have committed other crimes, which he did not. While I put a lot of stock in the commission's decision about Taylor, I am not ready to buy into his innocence just yet.

Conversely, the wrongfully accused lacrosse players did nothing remotely resembling rape or sexual assault. Once the DNA results were back from DNASI, the case against them should have been dismissed.

Walt-in-Durham

Walt said...

Sydney, you wrote in your blog post: "Mr. Neff states that the Bar prosecuted Mr. Nifong for withholding evidence. The media, in general, has consistently disseminated and perpetuated this lie."

That is definitely among the charges for which Nifong was prosecuted, of which he was found guilty. Correctly found guilty, I might add. Nifong withheld the DNASI report from his so called "open file" discovery response, when it was in his possession. Further, he lied to the court and counsel when asked about other exulpatory evidence. Nifong cannot hide behind the "someone else prepared the discovery response" defense, because Nifong was at the meeting with the DNASI lab director and discussed the exculpatory evidence.

"... and he did so well before a trial date was even set."

Again, this is not the standard. Once asked, Nifong had an obligation to turn over the evidence. Especially since he knew it was exculpatory. Indeed, he knew at the end of the DNASI meeting that he had no link to the defendants at all. The correct response then would have been to head the investigation towards identifying the donors of the samples that the state did have. Instead, Nifong chose to pursue obviously innocent people.

"The defense team had plenty of time to work with all the DNA evidence in preparing a defense for their clients."

They should not have had to prepare a defense. They should have gotten a notice of dismissal.

"Defendants in the Duke Lacrosse case were not prejudiced in the least by DNA evidence being presented to them in October 2006, instead of May 2006."

Only by the considerable cost of their attorney fees after May 2006. Only by the considerable cost to their reputations. And of course, the violation of the constitution is complete the moment the state fails to turn over the exculpatory evidence. Timing is not the issue.

The bottom line is, if you believe Crystal's story that she was raped, then Nifong let a rapist or rapists go free by pursuing obviously innocent men.

Walt-in-Durham

unbekannte said...

Sidney Harr de Harr Harr

How can you form an opinion as to evidence was exculpatory or not when, by your own admission, you were not familiar with the evidence???

Anonymous said...

You do not put any credibility in anyone or anything, except for yourself.

Anonymous said...

Albert Einstein said:

"One definition of insanity is to do the same thing over and over and expect a different outcome." I think he was referring to you when he wrote this.

With every post you write defamatory rubbish about the players, their parents, their lawyers, the Bar Council……; anyone who you feel was responsible for the downfall of your alter ego Mike Nifong. If the facts of the case don’t fit your narrative, you avoid them, or fabricate something that endorses your twisted point of view, or just downright lie.

With every post come the comments from the really knowledgeable posters; people who have done extensive research, people who have followed the case exhaustively from the first day. They point out the many lies, fabrications and inexactitudes of both yourself and Nifong. And with every post, you ignore; denigrate or otherwise disrespect them. You promise to respond when they corner you, but you never do.

With every post comes the fawning adulation of Justice58, your sole blog groupie, whose racist comments are scarely more than hysterical ravings and utterly without foundation.

With every post you are convinced that you have converted your readership to believe that Mike Nifong is the greatest lawyer since Abraham Lincoln.

With every post, you make yourself look more and more stupid.

And then the next time you do it all over again, convinced that this time around everything will different.

As Einstein said: INSANE

unbekannte said...

Hey, Sidney Harr de Harr Harr:

You are a piece of work. You admit that there is evidence in the public record which shows the Duke Lacrosse players are innocent. But you do not accept the evidence because you consider the media biased. You admit you have no familiarity with the evidence on which basis AG Roy Cooper declared the Lacrosse players innocent. But you declare the declaration of innocence was inappropriate.

Are you familiar with due process and the presumption of innocence? Since the Lacrosse defendants were never convicted beyond a reasonable doubt, it is a constitutional and legal requirement they be considered innocent, something that decent(HA) honorable(HA HA) distinguished(HA HA HA) exemplary(HA HA HA HA) minister of[he doesn't know the meaning of] justice(HA HA HA HA HA) mike nifong never did.

I say again, you have admitted you are in no position to know whether or not the innocence declaration was appropriate because you have admitted you are unfamiliar with the facts of the case upon which the innocence declaration was based.

unbekannte said...

Biased prejudiced racist bigot fanatic know nothing injustice58:

Where have you been, cyclamate? I would have expected you would have spewed some venom by now.

Nifong Supporter said...

To JSwift:

With regards to the DNA evidence, it was not exculpatory of a sexual assault, as your premise is that all sexual assaults leave DNA. To begin with, the DNA tests performed by the private laboratory were on fragments of single strands of DNA, and were most likely related to sexual activity engaged in long before the night of the Duke Lacrosse party. The fact that they did not match DNA profiles of the Duke partygoers is not unexpected. It is hardly exculpatory.

Also, the basis of the charges against the players is witness testimony. Ronald Cotton and Dwayne Dail were convicted on witness testimony alone, and their prosecutors are not maligned. That is an acceptable basis for making a charge of sexual assault and rape. Although DNA in their cases was exculpatory, the DNA findings in the Duke Lacrosse case were non-inculpatory.

JSwift said...

With regards to the DNA evidence, it was not exculpatory of a sexual assault, as your premise is that all sexual assaults leave DNA.

I waited 25 days for that?

You once again refuse to address the point of my comment.

Ms. Mangum specifically alleged that one or more of her attackers ejaculated. She further alleged that one or more of her attackers did not use a condom.

A sexual assault in which the attacker ejaculated and did not use a condom would certainly have left DNA.

The failure to find a positive DNA match to any of the players (including the one or more alleged attackers who ejaculated and did not use condoms) is clearly exculpatory. It is compelling evidence that the alleged attack did not occur as alleged.

If nothing else, the negative DNA results disproves the specific crime that Ms. Mangum (i.e., a sexual attack in which one or more attackers ejaculated and did not use condoms). Evidence that disproves the specific allegation raises doubts as to the accuser's credibility.

The rest of your reply consists of straw man arguments and comments irrelevant to my comment.

Sidney,

You have evaded answering my comment for more than one month (the original comment was made on November 12).

I ask that you answer one question:

HOW IS THE FAILURE TO FIND A POSITIVE DNA MATCH NOT EXCULPATORY IN AN ALLEGED SECUAL ASSAULT IN WHICH THE COMPLAINING WITNESS STATES SPECIFICALLY THAT ONE OR MORE OF THE ATTACKERS EJACULATED AND DID NOT USE CONDOMS?

DEHall said...

I think Robert Mosteller (Professor of Law and J. Dickson Phillips Distinguished Professor, Duke University) explained it best:

"This information [that DNA from up to four different males had been found] is obviously potentially exculpatory in two ways. First, no matches from the DNA of any of the 46 players were found. That suggests, but does not establish, that no rape occurred. It is relatively strong evidence of innocence given Magnum’s statements that no condoms were used. Second, foreign DNA was found, which is exculpatory as well. That evidence would have been strongest in its exculpatory impact for three charged players if the DNA had definitely incriminated three different Duke Lacrosse players in the rape. Mangum stated that three and only three, men assaulted her at the lacrosse party, and none of the players had an innocent explanation for how his DNA could have gotten onto “rape kit” items given the intimate nature of the contact required. However, the re-sults, even if not showing sexual activity with other Duke lacrosse players, were still exculpatory in that they suggested sexual contact with multiple males, and they would help explain the only physical finding that supported the rape allegation—the vaginal swelling that could have been produced by sexual contact."

This is from his article "Exculpatory Evidence, Ethics, and the Road to the Disbarment of Mike Nifong: The Critical Importance of Full Open-File Discovery". You should give it a read, Dr. Harr -- Here's the link:
http://scholarship.law.duke.edu/faculty_scholarship/1834/

DEHall said...

Sorry -- link cut off again...Try this one:

http://scholarship.law.duke.edu
/faculty_scholarship/1834/

Walt said...

"Also, the basis of the charges against the players is witness testimony. Ronald Cotton and Dwayne Dail were convicted on witness testimony alone, and their prosecutors are not maligned."

Because in those cases, the DNA evidence did not become available until years after the initial trials. When the DNA evidence showed that someone else committed the crimes, they were exonerated.

Today, with a very unreliable eyewitness identification by Crystal, the only identifying evidence the state had against the innocent lacrosse players was physical. None of the physical evidence connected them to the crime. Thus, they had nothing to do with any crime if it happened.

"Although DNA in their cases was exculpatory, the DNA findings in the Duke Lacrosse case were non-inculpatory."

Actually it was exculpatory. The DNA evidence contradicted Crystal's identification.

Walt-in-Durham

unbekannte said...

Sidney Harr de Harr:

You have admitted you are not familiar with the evidence which resulted in the Lacrosse players' exoneration. You admit you do not accept the evidence available in the public record because you consider the media biased. So by what authority do you proclaim youself knowledgeable about the case?

You call the media biased because they do not buy into your delusions about the case.