“Walt in Durham,” the pseudonym of a frequent commenter in this blog site, www.justice4nifong.blogspot.com, is an intelligent individual, but even he has been duped and bamboozled by the media… WRAL, in particular. If the media is capable of feeding misinformation to Walt, and having him accept it as truthful, then it is obvious why the vast majority of media subscribers, like Walt, have negative attitudes towards former Durham District Attorney Mike Nifong which are unwarranted.
This observation stems from a recent blog (around October 18, 2009) in which I made the following statement, “Just because Attorney General Roy Cooper said nothing happened at the party does not make it so.” Walt replied with a comment on October 21, 2009 which stated as follows: “But, Nifong himself said so twice” (insinuating that Mr. Nifong admitted that nothing happened at the Duke lacrosse party). When I requested the source upon which he based his comment, he told me it was from WRAL. And sure enough, I went to the WRAL website and upon searching, I found the following article posted on July 26, 2007, with the headline, “Nifong Apologizes, Admits Nothing Happened.”
That headline is an outright blatantly false and purposely misleading statement, and it was extremely effective in playing a Jedi-mind trick on Walt, and many others. The first part of the statement, “Nifong Apologizes,” is true, but the second part, “Admits Nothing Happened,” is offensively false on its face and baseless. There is absolutely nothing in the web article to substantiate such a claim.
Mr. Nifong does make the following statement, as published in the article: “I agree with the Attorney General’s statement that there is no credible evidence that Mr. Seligmann, Mr. Finnerty, and Mr. Evans committed any crimes for which they were indicted – or any any other crimes against Ms. Mangum – during the party.” Yes, he states that “there is no credible evidence” that the three defendants committed any crimes for which they were indicted, but that does not mean that he does not believe that they are not guilty of committing crimes against Ms. Mangum. Definitely it does not mean that Mr. Nifong believed that “nothing happened.” For the media to state that Mr. Nifong admitted that nothing happened is wrong and grossly irresponsible.
That said, there are many cases that move forward without credible evidence. In the Brittany Willis murder/rape/kidnapping/armed robbery case, there was no credible evidence against defendant James Arthur Johnson. Although Johnson heroically solved the crime for the Wilson police, he ended up spending 39 months in jail on charges which lacked credible evidence; charges that were later dropped. Notice that the media did not go after Prosecutor Bill Wolfe. In the case against 14 year old Erick Daniels, who was identified by a robbery victim due to the shape of his eyebrows in a school yearbook, there was no credible evidence that existed against him. Yet he wrongfully served seven years in jail and the media is not critical of his prosecutor, Freda Black. There was no credible evidence against Alan Gell for the murder with which he was convicted and unjustly served nine years in prison (half of it on death row). However, there was exculpatory evidence favoring Mr. Gell which the prosecutors withheld from defense attorneys in order to win a conviction. Even at that, the media went out of its way to protect and shield his prosecutor (David Hoke) from criticism. I could go on.
Bottom line is that there are many charges that are brought by prosecutors without credible evidence… but just circumstantial evidence. The admission by Mr. Nifong that no credible evidence existed does not necessarily exclude the possibility that a credible case could be built against the defendants.
Finally, the nexus between credible evidence and the occurrence of a sexual assault is non-existent, but WRAL and the media in general would like the public to believe that in this particular Duke Lacrosse case they are linked; one and the same. The folly of this argument is obvious when you consider, for example, the rape case against Ronald Cotton. Mr. Cotton was picked up off the street and placed in a lineup where he was positively identified as the rapist by a rape victim. There was no credible evidence linking him to the crime, nonetheless he was convicted and served many years in prison before being cleared by DNA. Because no credible evidence against him existed does not mean that the rape for which he was charged did not happen. In the Duke Lacrosse case, Attorney General Cooper has reached far beyond his bounds by declaring that no criminal activity took place against Ms. Mangum, based on the fact that there was no “credible” evidence against those accused by Ms. Mangum. And this is the line that the media, including WRAL, pursued and propagated.
Furthermore, the media, instead of questioning the legitimacy and propriety of the attorney general’s “innocent” proclamation of the three Duke Lacrosse defendants, accepted it as being legitimate and binding. This declaration is an example of overreaching and irresponsibility by the attorney general at its greatest, and the media has been content to completely ignore its lack of legal substance. This is an outrage that WRAL reported without question and as factual with its online statement: “Following North Carolina Attorney General Roy Cooper’s declaration this April that the three men were innocent, …”
A final disgracefully misleading passage in the WRAL article is: “The defense’s request to drop the motion for criminal sanctions means that Nifong will no longer be required to reimburse the defendants thousands of dollars for costs incurred in the defense’s uncovering of exculpatory DNA evidence that could have cleared the players had the case gone to trial.” First of all, the defense probably decided to drop the motion for criminal sanctions because of the absurdity of the charge, which would become apparent in a courtroom. To expect a prosecutor to pay for work performed by the defense team is absolutely ludicrous, yet the media’s take on it is matter-of-fact. But the most egregious and disingenuous part of the statement is the use of the adjective “exculpatory” when describing DNA evidence. There is absolutely no way in which the referenced DNA evidence could be exculpatory (that is, clear the players of sexual assault), and to suggest so is a monumental disservice to the public. WRAL, along with almost all other media sources, has consistently erred on this specific issue of great importance.
In reporting on the same event, John Stevenson, of The Herald Sun, makes statements similar to WRAL such as: “All remaining charges against the defendants were dismissed in April by Attorney General Roy Cooper, who declared the three innocent,…”
The Herald Sun goes out of its way to generate sympathy for the Duke defendants by quoting one of their attorneys, Joseph Cheshire: “…a long journey of suffering for innocent people.” Mr. Cheshire takes advantage of Attorney General Cooper’s “innocent” declaration, and then the public is supposed to believe that the Duke Lacrosse players suffered? First, they spent no time in jail (their prosecutor – Mike Nifong – spent more time in jail than they did combined). Second, they each received $7 million from Duke University in an out of court settlement (don’t ask me why). Third, their avaricious carpetbagger families are currently trying to gouge another $10 million for each of their defendant sons from the cash-strapped city of Durham. Fourth, they were represented by high-powered attorney, not public defenders. And fifth, they were certainly not oblivious to the biased media attacks being lodged against Mike Nifong, the accuser, and the city of Durham. With consideration of the aforementioned, I doubt very seriously that the boys endured a “long journey of suffering.” James Arthur Johnson, Erick Daniels, Floyd Brown, Charles Wayne Munsey, Theodore Jerry Williams, and other innocent people who were wrongfully incarcerated for long periods of time without compensation know what it is to suffer. On the other hand, the Duke Lacrosse defendants have mainly experienced pampering and coddling by the courts, the media, and the public… privileged treatment for which they have been accustomed and to which they feel is their birthright.
As outrageous and unfair as the coverage by WRAL and The Herald Sun was, it pales in comparison to the ranting of MSNBC Senior legal analyst Susan F. Filan. In an online article posted June 17, 2007, titled “Nifong’s punishment is extreme, appropriate,” Ms. Filan claims that Mr. Nifong damaged the sport of lacrosse. Now, I am not making this up. She actually wrote that! I would like to know how. First of all, I doubt that he even knows anything about the sport. Another unsubstantiated claim by Ms. Filan is that Mr. Nifong damaged the reputation of Duke University. Again, I would like to know how. Her article failed to explain. Ms. Filan claims Mr. Nifong damaged three innocent men. Like the rest of the media, she gives credence to Attorney General Roy Cooper’s “innocent” declaration. Now I have never attended law school, and I am certainly not the senior legal analyst of a major media network, but from my high school civics class I learned that the attorney general, or anyone else in the executive branch, does not have the authority to render judicial decisions. That authority lies clearly with the judicial branch of government, as in judges.
Finally, Ms. Filan blames Mr. Nifong for damaging the public’s confidence in the criminal justice system. Actually, nothing could be further from the truth. Mr. Nifong, in prosecuting the Duke Lacrosse case on behalf of a victim who was poor, disenfranchised, and of color, against three young college men from families of wealth and privilege, was following the principle of “equal justice for all.” North Carolina justice, in practice, follows the tenet of “selective justice based on Class and Color.” That is what prevailed in the Duke Lacrosse case. The powers that be, and the media (including Ms. Filan) which was in cahoots with those powers, are responsible for destroying the public’s faith in the criminal justice system of North Carolina. All one has to do is look at the cases of James Arthur Johnson, Erick Daniels, Floyd Brown, Theodore Jerry Williams, Wayne Charles Munsey, Darryl Hunt, and many others who are poor and disenfranchised, and then compare them with the Duke Lacrosse case.
I take umbrage at Ms. Filan’s baseless speculations, especially her following statement: “He used the Duke case to get re-elected, and he resigned to try to save his law license.” What proof does she have for making these claims? They are reckless, inflammatory comments that are unsubstantiated… definitely statements which I doubt that she can back up with fact.
Ms. Filan did note in her article the rarity of the disbarment of an attorney, stating that it is the legal equivalent of a unicorn sighting. I would disagree when it comes to attorneys in private practice, but the statement is valid when it comes to state prosecutors. She failed to mention that Mike Nifong is the only prosecutor to be disbarred by the North Carolina State Bar since its inception in 1933. During a 76 year period, hundreds, if not thousands of North Carolina attorneys have lost their law license, but only one prosecutor has been disbarred… Mike Nifong. This is a fact that the media has kept hidden from the public, especially in light of North Carolina cases in which there has been egregious prosecutorial misconduct… in particular the Alan Gell case. Furthermore, North Carolina follows only the states of Illinois and Louisiana in the number of death row inmates who have been exonerated.
This type of Journalism engaged in by WRAL, The Herald Sun, MSNBC and other media outlets is detrimental to the public which relies on the media for fair and objective reporting. The false, fraudulent, unsubstantiated statements and claims put forth by the media about Mr. Nifong are not the result of sloppiness or inattention, but they are carefully calculated statements made as propaganda intended to direct public sentiment against Mr. Nifong who has attempted to take class and color out of the equation when it comes to justice in North Carolina.
Mr. Nifong has always maintained that he felt that something criminal did happen to the accuser at the March 13, 2006 party hosted by the Duke Lacrosse team. Unlike Attorney General Roy Cooper, Mr. Nifong never said “nothing happened” at the party. So, the media took it upon itself to do it for him… even though there was no truth to it. And as a result, intelligent people, like Walt in Durham, believed the lie… proving that the media has become quite adroit at using the Jedi-mind trick on the public. That is what the media did in its coverage of the Duke Lacrosse case and its prosecutor, Mike Nifong – instead of informing the people, it was busy molding their minds.
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31 comments:
You are either incredibly stupid or incredibly deluded.
To unbekannte:
Do you, like MSNBC legal analyst Susan Filan, believe that Mike Nifong damaged the sport of lacrosse? If so, could you explain it to me?
Personally, I hope Mike Nifong never works a day in law again, and dies as a poor man.
He ruined several people's lives.
Maybe, he'll drink his life away and die young? One can only hope.
When I hear of his death in the future, I will raise a glass since it'll be a good day.
To Kenneth:
You stated that Mr. Nifong ruined several people's lives. Who are you talking about?
How about the prosecutors who ruined the lives of Alan Gell, James Arthur Johnson, Erick Daniels, Jonathan Gregory Hoffman, Floyd Brown, and others? Would you like to see them die poor?
As far as raising a glass and celebrating the death of a person, it tells me a lot about the kind of person you are. Not someone with whom I would choose to associate.
Nifong Supporter (Mikie): Why don't you you give up the pretence of this blog?
You should stop wasting your time. You lied cheated and attempted to railroad three demonstrably innocent lacrosse players in a very transparent attempt to win the District Attorney's job. Why? for a paltry $20 000 in additional pension.
You got caught! You got disbarred! You got sent to jail! You were forced to declare bankruptcy!
You still have to face the civil litigation that will inevitably and definitively reveal just how much of a criminal you really are.
There is still much to be revealed!
What happened to the "million dollars of free publicity", Mikie?
Was it really worth it??
At least you still have your guitars. You should count yourself fortunate.
You deserve every last vestige of opprobium that has and will continue to be heaped upon you.
I too will drink to your demise!
“Walt in Durham,” the pseudonym of a frequent commenter in this blog site,... is an intelligent individual, but even he has been duped and bamboozled by the media… WRAL, in particular.
If WRAL has bamboozled me by posting Nifong's admission, on the District Attorney's letterhead, then I'm guilty. The point remains that even Nifong, the poorest prepared attorney who disgraced this case admits that there was no evidence of any crimes committed by Seligman, Finnerty and Evans. The fact that he has tried to weasele out on his admission from time to time, only reflects poorly on him.
Walt-in-Durham
To Anonymous:
Unlike you, the members of the "Committee on Justice for Mike Nifong" lend our names, faces, and actions to our commitment. Sidney B. Harr is responsible for the website, and the blog entries. Mike Nifong has no connection or input with our organization, which was founded by Victoria Peterson and Sidney Harr, and Douglas Register in June 2008.
To Walt:
As you can see, the media has tried to bamboozle the public into believing that Mike Nifong admitted that "nothing happened" at the party. As you have conceded, Mr. Nifong did not parrot the Attorney General who made the irresponsible statement.
Although the state tried to pressure Mr. Nifong into stating that "nothing happened" he never did, and always maintained that he did, indeed, feel that something criminal happened at the party. The media put words in his mouth in stating that he admitted "nothing happened." And he never tried to weasel out or deviate from his belief that something criminal did happen.
As I pointed out, there are many cases that are prosecuted where "credible evidence" is lacking... just a few are the cases against James Arthur Johnson, Erick Daniels, Floyd Brown, and Ronald Cotton. Yet, no one complains about their prosecutors.
Mr. Nifong does make the following statement, as published in the article:
“I agree with the Attorney General’s statement that there is no credible evidence that Mr. Seligmann, Mr. Finnerty, and Mr. Evans committed any crimes for which they were indicted – or any other crimes against Ms. Mangum – during the party.”
Yes, he states that “there is no credible evidence” that the three defendants committed any crimes for which they were indicted, but that does not mean that he does not believe that they are not guilty of committing crimes against Ms. Mangum. Definitely it does not mean that Mr. Nifong believed that “nothing happened.” For the media to state that Mr. Nifong admitted that nothing happened is wrong and grossly irresponsible.
I agree that Mr. Nifong’s statement that there is “no credible evidence” that the three defendants committed crimes against Ms. Mangum is not literally the same as a statement that “nothing happened.”
Your suggestion that Mr. Nifong continues to rely on innuendo is disturbing. A decision to obtain indictments and seek arrests based only on his feeling that “something happened” is inconsistent with Mr. Nifong’s former responsibilities as a prosecutor. In your attempt to support Mike Nifong, you merely provide additional evidence that he is unfit to serve in that role..
After more than 3 ½ years since the initial indictments and arrests, Mr. Nifong has failed to provide any explanation of “what” he believed “happened” and why this vague feeling justifies indictments and arrests for charges in support of which he concedes there is “no credible evidence.”
As you know, Mr. Nifong has never provided those details.
Mr. Nifong avoided a probable cause hearing by seeking indictments rather than arrests. The DPD case file fails to provide those details. Mr. Nifong never provided those details during the prosecution; he successfully avoided a requirement to provide a bill of particulars for the alleged crime. Mr. Nifong failed to provide this information in either his disbarment hearing or his criminal contempt hearing.
The Chalmers report on the DPD’s activities and Patrick Baker’s cover memo which conveys that report provided no evidence that “something happened” that justified the arrest of three young men on charges for which there was “no credible evidence.”
That said, there are many cases that move forward without credible evidence.
This statement is an indictment of the flaws in the criminal justice system and in no way constitutes a valid defense of Mike Nifong’s conduct.
You appear not to understand what constitutes “credible” evidence. “Credible” evidence is evidence that is believable, taken from a source that is believable. Even credible evidence may later be shown to have been incorrect.
On the other hand, evidence is NOT “credible” when the evidence from is taken from sources known (or sources the prosecutor and police should have known) to be tainted. Examples of tainted sources include: identifications from flawed procedures (guidelines are in place for good reasons), witnesses who provide inconsistent accounts or whose accounts are contradicted by other evidence and witnesses who have motivation to lie due to self-interest (e.g., witnesses seeking to minimize the consequences they may face and witnesses who have been intimidated).
When evidence subsequently is discovered to have been incorrect, it is reasonable to question whether that evidence was “credible” at the time of the prosecution. The subsequent discovery that the information was incorrect does not necessarily mean that the evidence was “not credible” at the earlier date. Honest mistakes unfortunately do happen, even when everyone acts in good faith.
The desire to minimize these mistakes is why guidelines for investigative procedures have been adopted. Honest mistakes can be tragic; dishonest mistakes are indefensible. The intentional failure to adhere to guidelines can provide evidence of misconduct.
In the Brittany Willis murder/rape/kidnapping/armed robbery case, there was no credible evidence against defendant James Arthur Johnson. Although Johnson heroically solved the crime for the Wilson police, he ended up spending 39 months in jail on charges which lacked credible evidence; charges that were later dropped.
Mr. Wolfe’s alleged misconduct does not justify similar conduct by Mr. Nifong.
Mr. Wolfe held Johnson as a result of the accusation by Kenneth Meeks, the man who later confessed to the crime and was convicted as the murderer/rapist (due in large part to Johnson’s assistance). Johnson also admitted to having helped to destroy evidence when he assisted Meeks in wiping prints from the victim’s car. Meeks’ accusation should be viewed with some skepticism given his motivation to lie in an attempt to save himself.
I do not know the details of the Willis case well enough to comment. Based on your mischaracterization of facts in the Duke case (which I do know fairly well), I cannot accept your description of those details without independent verification.
Mr. Nifong claims that he accepted without question the accusation of Ms. Mangum, an accusation that was not supported by and even contradicted by physical, medical and other evidence. Ms. Mangum, like Meeks in the Willis case, had a motivation to lie in order to save herself. In Ms. Mangum’s case, she was at risk for involuntary confinement at Durham Access.
You apply a double standard when you criticize Mr. Wolfe for his use of an accusation from a self-interested accuser, but you praise Mr. Nifong for his use of a similarly tainted accusation.
Despite evidence that contradicted her accusation, Mr. Nifong claims not to have discussed the facts of the accusation with Ms. Mangum until shortly before his recusal. You ask that we accept blindly Mr. Nifong’s claim that “he believed” Ms. Mangum’s allegations without ever discussing those allegations with her. He has never explained why he found her to “credible.”
In the case against 14 year old Erick Daniels, who was identified by a robbery victim due to the shape of his eyebrows in a school yearbook, there was no credible evidence that existed against him. Yet he wrongfully served seven years in jail and the media is not critical of his prosecutor, Freda Black.
I agree that the school yearbook identification procedure was highly flawed. Yet, despite these severe flaws, this procedure did not violate DPD guidelines in force at that time. The procedure was not designed by Freda Black, but rather was designed by the DPD investigator. The yearbook procedure by definition contained numerous fillers (the many members of the class known to have no connection to the case). Erick Daniels was a suspect in the case based on other information, and he was arrested when the victim in the robbery identified the shape of his eyebrows, even though he apparently did not match the description of the suspect that the victim had provided earlier.
The victim in this robbery was an employee of the DPD, a witness many felt at the time to be credible. Eyewitness identification in the best of circumstances can be flawed. This identification was clearly not the best of circumstances.
Thankfully, this procedure no longer meets the requirements of the DPD. Fewer defendants will be wrongfully accused and convicted if the DPD were to adhere to its requirements for identifications.
The flawed identification procedure in the Daniels’ case does not excuse Nifong’s design and use of a flawed identification procedure in the Duke case.
Nifong instructed the DPD to conduct an identification that he knew violated their guidelines in many significant ways. The identification procedure used in the Duke case violated departmental requirements in many significant respects; it (1) contained no fillers, (2) was conducted by one of the investigators rather than an officer not connected to the investigation, and (3) began with a statement that the photographs were limited to individuals thought to have attended the party. James Coleman, a Professor at the Duke Law School and a former member of the Actual Innocence Commission, noted, "The officer was telling the witness that all are suspects, and say[ing], in effect, 'Pick three.’ It's so wrong; it had to be done for a reason other than identification."
Moreover, as you know, Ms. Mangum had failed to make identifications on two earlier identifications sessions on March 16 and March 21. These procedures also violated DPD guidelines. She had provided identifications on March 16 that matched none of the players. Her ability to make identifications had been highly tainted. As a result, Nifong knew that her identifications were likely unreliable. He knew that physical or other evidence would be required to support those tainted identifications.
Once again, you apply a double standard. You criticize Ms. Black for her use of a flawed identification that met then current standards, but you justify Mr. Nifong’s use of a flawed procedure that he designed with the full knowledge that the procedure violated the DPD’s requirements in numerous material respects.
There was no credible evidence against Alan Gell for the murder with which he was convicted and unjustly served nine years in prison (half of it on death row). However, there was exculpatory evidence favoring Mr. Gell which the prosecutors withheld from defense attorneys in order to win a conviction. Even at that, the media went out of its way to protect and shield his prosecutor (David Hoke) from criticism. I could go on.
There were statements from witnesses who implicated Gell. One can and should question whether the prosecutors and police were justified in concluding that these statements were credible or whether prosecutors and police knew or should have known that they were flawed. Many of those statements have subsequently been discredited.
I agree that the many statements from witnesses that the murder victim was alive when Gell was in jail on an unrelated charge provide significant—if no incontrovertible—exculpatory evidence. The failure of the prosecutors to provide that evidence to the defense is inexcusable.
As a result, the prosecutors should have been disbarred. The NC Bar failed utterly in its responsibilities in the Gell case. The prosecutors’ claim that they failed to deliver this evidence because they had neglected to read their file cannot excuse this failure. At best, their gross negligence resulted in an innocent man serving years on death row.
Interestingly, Nifong at times has attempted to invoke the same excuse, albeit less successfully. You appear to have accepted Nifong’s excuse that he cannot be faulted for his failure to review and understand the evidence, but you properly reject the same excuse from the Gell prosecutors. I fail to understand your double standard.
Bottom line is that there are many charges that are brought by prosecutors without credible evidence… but just circumstantial evidence.
This statement shows a fundamental misunderstanding of the way in which the criminal justice system is supposed to work. The standard for an arrest or a search warrant is “probable cause.” Circumstantial evidence can help support “probable cause.” “No credible evidence” is not consistent with the “probable cause” requirements needed for an arrest. The system requires additional evidence be obtained before arrests are justified.
Mr. Nifong understood the “probable cause” requirement, but he proceeded in a way that circumvented it.
In virtually all other sexual assault cases in Durham, the DPD applied for arrest warrants and simply arrested the suspects. In this case, Mr. Nifong elected to seek indictments. By doing so, he left the alleged rapists in the community between the April 4 “identification” of the suspects and their arrests on April 18 and May 15.
Why was this case so different? Why did Mr. Nifong expose the community for so long to the “risk” of suspects who had been accused of such a brutal crime? Mr. Nifong has never explained why he elected to seek indictments in this case and thus put the community at risk.
Many observers have noted that suspects who are arrested are entitled to a probable cause hearing. At this hearing, the arrested suspects are able to require that the prosecutor demonstrate that the arrests are justified by “probable cause.” At this hearing, the defense is able to challenge the evidence produced by the prosecution. In North Carolina, suspects who are indicted are not entitled to such a hearing. They are provided no opportunity to challenge whether the prosecutor has met the “probable cause” standard.
Grand jury proceedings, on the other hand, do not provide the same protections for the rights of potential suspects. Although the prosecutor is not present in the proceedings, the prosecution nevertheless is able to control the process. The prosecutor selects the witnesses. In the Duke case, the only witnesses who provided testimony were Inv. Ben Himan (for all three indictments) and Sgt. Mark Gottlieb (for only the first two). On average, a grand jury spends only a few minutes considering each of the cases presented to them.
There is no requirement to present any exculpatory evidence to a grand jury. The defense is provided no opportunity to challenge the evidence presented.
Uniquely to North Carolina, there is no record of the grand jury proceedings. A defendant has no right to be provided with the evidence used to obtain indictments. Because there is no record of the proceedings and no right to challenge it, there is no check on the accuracy of the testimony provided by witnesses. For example, in his deposition for Mr. Nifong’s disbarment hearing, Mr. Gottlieb stated that he testified that Ms. Magnum provided a consistent account of the alleged attack after her initial confusion at Duke University Medical Center. This statement is materially inconsistent with the information contained in the DPD case record.
The grand jury system in North Carolina is totally broken. Mr. Nifong obviously cannot be blamed for these flaws. While I expect that other prosecutors likely have abused the grand jury system, their conduct does not excuse similar abuse by Mr. Nifong.
He has admitted that he had “no credible evidence” to support his charges. He deserves no credit for using a flawed system to avoid the requirement that he demonstrate “probable cause.”
The admission by Mr. Nifong that no credible evidence existed does not necessarily exclude the possibility that a credible case could be built against the defendants.
This is correct. The credible evidence needed to support the “probable cause” standard can only be developed through a complete and thorough investigation. An investigation to develop the evidence that meets the “probable cause” standard, however, must be conducted prior to indictments and arrests—never afterwards.
The DPD did not conduct a credible investigation. They failed to interview numerous witnesses and examine physical and other evidence that they had in their possession or knew to exist. They failed to read medical reports or, if they did read those reports, to reconcile significant differences between those reports and statements made by the SANE-in-training and Ms. Mangum. They made no attempt to reconcile materially inconsistent statements made by the few witnesses they did bother to interview. They made no attempt to reconcile the many statements made by Ms. Mangum.
The DPD made no credible attempt to develop evidence that met the “probable cause” standard, either before or after the indictments. “No credible evidence” existed when the defendants were indicted, and “no credible evidence” existed at any time thereafter.
Mr. Nifong’s admission that “no credible evidence” existed, however, is an admission by him that the indictments and arrests did not meet the “probable cause” standard and that indictments and arrests were not justified.
Indictments and arrests supported by “no credible evidence” are never justified under the theory that one cannot “necessarily exclude the possibility that a credible case could be built against the defendants” at some point in the future. That standard would never rule out a prosecution, no matter how unfounded.
As a result, your defense of Mr. Nifong on this basis is patently ridiculous.
Your theory of a prosecution that can be justified by the mere “possibility that a credible case could be built” is guaranteed to increase manifold the number of false and unjustified arrests and prosecutions. As you know, most of the victims of those unjustified arrests and prosecutions would be poor minority defendants.
You have previously supported Mr. Nifong’s theory that prosecutors are not required to provide evidence to defendants until shortly before trial. The NC Bar properly rejected this theory, noting that it would increase the pressure on defendants—including innocent defendants—to agree to plea bargains. Due in part to the ability of prosecutors in North Carolina to delay discovery with few restrictions (authority that you previously have endorsed—at least when held by Mr. Nifong) and a desire to minimize the downside, particularly by those defendants unable to make bail, many of these poor defendants might likely accept a plea bargain despite the lack of “credible evidence” to support the charges. Those defendants would never know that “no credible evidence” exists.
I do not share your view that this constitutes justice.
The bottom line is that in a properly investigated case, the investigation takes place before indictments and arrests. Your defense of Mr. Nifong appears to accept the premise that his role is simply to obtain indictments and then to see what, if anything, he can make stick.
Finally, the nexus between credible evidence and the occurrence of a sexual assault is non-existent, but WRAL and the media in general would like the public to believe that in this particular Duke Lacrosse case they are linked; one and the same.
This is a ridiculous argument, and with your medical background, you should be ashamed of making it.
As you know, in this case, Ms. Magnum was taken to Duke University Medical Center within hours of an alleged brutal gang rape by three (or more) rapists, none of whom used condoms. She claimed the alleged attackers raped her vaginally, anally and orally. She claimed that she spit out semen (obviously that alleged attacker did not use a condom).
What were the results of that examination? No semen, no male DNA (at least none that matched the players), no physical injuries, no medical injuries. Ms. Magnum was diagnosed with a vaginal edema (a slight swelling consistent with sexual activity, a yeast infection and other benign explanations) and a few scratches present in the photographs taken upon her arrival at the party. The examination provided no evidence to support her allegation.
Mr. Nifong’s statement at the NCCU forum that he would pursue the case “the old fashioned way” without DNA evidence was disingenuous.
As you know, many rape allegations involve the defense of consensual sex. Because the defendants claim that sexual activity occurred and that sexual activity was consensual, they will concede that DNA evidence will be found in and on the accuser. In those cases, DNA evidence is irrelevant.
As you know, in the Duke case, the defendants did not claim that sexual activity was consensual. They denied that any sexual activity had taken place. The lack of DNA evidence supported this claim and proved to be critical.
In other rape cases, the alleged victim does not report the alleged rape immediately and the passage of time may result in the destruction of evidence. For example, DNA evidence may be washed away or decompose if the alleged victim had taken a shower or delayed reporting the allegation. As you know, there were no delays in this case. Ms. Mangum underwent an examination within hours of the party. She did not take a shower or bathe in the interim. DNA evidence thus was critical to the investigation.
Mr. Nifong’s statement thus had no basis in fact in this case.
The folly of this argument is obvious when you consider, for example, the rape case against Ronald Cotton. Mr. Cotton was picked up off the street and placed in a lineup where he was positively identified as the rapist by a rape victim. There was no credible evidence linking him to the crime, nonetheless he was convicted and served many years in prison before being cleared by DNA.
The Cotton case demonstrates the weakness of any prosecution solely on the basis of witness or victim identification. Identifications later shown to be erroneous may have reasonably been viewed as “credible” at the time. Subsequent discovery of errors do not necessarily cause them to have been “not credible” at the time of the trial. Witnesses—even witnesses reasonably thought to be credible—sometimes make mistakes, and errors, even in the best of circumstances, occur with altogether too much frequency. Erroneous identifications do not necessarily demonstrate prosecutorial misconduct.
The prosecutor’s use of an erroneous identification in the Cotton case does not excuse Mr. Nifong’s conduct in the Duke case.
Mr. Nifong, as you know, indicted the defendants based on the accuser’s identification in what he knew to be a highly flawed identification procedure. She had failed in two prior identification sessions and had failed to provide credible descriptions of the alleged attackers.
Moreover, there is significant evidence that Ms. Mangum made mistakes in her April 4 identifications of other attendees (for example, she identified with 100% certainty a player shown to have been with his girlfriend in Raleigh that night). Despite these errors, the DPD made no attempt to test Ms. Mangum’s credibility. As you know, there is no evidence to support the accusation against two of the defendants (and only a non-exclusion of DNA to support the third).
Once again, you apply a double standard. You criticize the use of an erroneous identification in the Cotton case (even though prosecutorial misconduct is not directly alleged in that case), but you endorse Mr. Nifong’s use of a flawed identification procedure, a procedure he personally had designed, knowing that it violated DPD requirements in numerous material respects, with an accusing witness he knew had failed to make identifications in prior attempts.
The Cotton case also demonstrates the importance of DNA evidence (and refutes your assertion above that credible evidence is not expected in a sexual assault case). As you note, Mr. Cotton was “cleared by DNA” many years after he had been incarcerated. In the Duke case, the defendants were “cleared by DNA” prior to their indictments when highly sensitive DNA testing failed to provide a match. Yet, they were indicted nonetheless.
Because no credible evidence against him existed does not mean that the rape for which he was charged did not happen.
This is a straw man argument.
Although I do not know the facts of the Cotton case, I expect that the prosecution found “credible evidence” that a crime had occurred, even if there was no credible evidence to implicate Mr. Cotton other than an erroneous identification. Data such as semen, male DNA, injuries, eyewitness accounts, etc. can provide evidence that a crime had occurred. As you know, the police many times may conclude that a crime has occurred, even if they do not know who committed that crime. The knowledge or belief that a crime has occurred does not give the police the right to make arrests of suspects without probable cause that those suspects committed the crime.
Your comment that Mr. Cotton was “cleared by DNA” suggests that DNA evidence was found in this case. The fact that Mr. Cotton was neither implicated nor cleared by the DNA evidence during the trial merely demonstrates that DNA testing “many years” ago was far less sophisticated than today.
As you know, in the Duke case, other than the accusations by the accuser and the statements by the SANE-in-training that the alleged victim’s “demeanor” was consistent with her allegations, there was no evidence that the crimes for which the defendants had been indicted had even occurred. There was no semen, no DNA matching any of the players in and on the accuser, no physical evidence, no medical injuries, no corroborating witnesses. Moreover, there was evidence that contradicted the allegations, including photographs, four witness statements and telephone and other electronic records.
This declaration [that the defendants were “innocent” of the charges] is an example of overreaching and irresponsibility by the attorney general at its greatest…
Attorney General Cooper is not the only person involved with this prosecution who has concluded that the defendants were “innocent.” He is, however, the only such person you have chosen to revile. You have not explained why you have limited your criticism to Cooper and spared others.
In his memo with which he conveyed to the members of the City Council former DPD Chief Steven Chalmers’ report on the DPD’s activities in this case, former City Manager Patrick Baker provided the following summary (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.”
As you know, as City Manager, Mr. Baker was responsible for supervision of the DPD. Het met with DPD investigators repeatedly during their investigation and made numerous public comments on this case. He was in a position to know what evidence existed in the DPD’s case file. He could not have reviewed Chalmers’ report without an understanding of that evidence. You have not criticized Mr. Baker for his concurrence with Mr. Cooper.
Finally, I close with Mr. Nifong’s reaction to Mr. Cooper’s declaration of innocence, included in his apology to the players delivered in July 2007. Mr. Nifong explained his understanding of that declaration (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.”
Mr. Harr, I suggest that you heed Mr. Nifong’s advice.
Sid Sid Sid.......
It appears that you have attracted comments from intelligent people who really know so much more about the Nifong Frame of Reade Seligmann, Collin Finnerty and David Evans than you!
Admit defeat; apologise to the citizens of Durham, the Students at Duke, the members of the lacrosse team and their parents; for the criminal and fraudulent conduct of your partner Mike Nifong, and once and for all cease this asinine crusade to rewrite the history of the Frame!
You cannot win
"As I pointed out, there are many cases that are prosecuted where "credible evidence" is lacking... just a few are the cases against James Arthur Johnson, Erick Daniels, Floyd Brown, and Ronald Cotton. Yet, no one complains about their prosecutors."
Syd, you are back to the two wrongs make it right argument. That is not the case. The DHC was right to disbar Nifong. The fact that Hoke and Graves got off only explains why Nifong thought he could too under similar circumstances. Thankfully he was wrong.
To Anonymous:
I've been out of the loop recently, busy moving, and have just now got around to checking my blog site.
Well, Anonymous, I presume that you now realize that Nifongs Supporter is someone other than Mike Nifong. I am under the impression that you probably find it hard to believe that anyone other than Mike Nifong would be supportive of him. Actually, the members of the "Committee on Justice for Mike Nifong" are only the few people who have the courage to lend their names and identities to the cause. There are many more people who are supportive of Mr. Nifong, but fear saying so publicly... especially after seeing what happened to Mr. Nifong. I can understand their concerns, and they are real. Freedom of speech does not come with a clause that ensures freedom from retaliation from that expression.
Anonymous, thank you for you extensive replies. I will try to address them in the future with blogs on the subject.
To Walt:
The reason for bringing up the cases of Gell, Johnson, Daniels, and others is to give an example of the selective nature of Mr. Nifong's punishment and treatment (the only prosecutor to be disbarred by the NC State Bar since its inception in 1933). As I have also stated previously, I do not concede that Mr. Nifong did anything wrong in his prosecution of the Duke Lacrosse case, whereas Bill Wolfe, David Hoke, and Freda Black certainly did, and their innocent victims actually suffered.
I was the anonymous commeter at
Mr. Harr:
I was the anonymous commenter at 6:20 pm through 6:34 pm. Blogger would not accept my password yesterday. I was not the earlier anonymous commenter.
To JSwift:
Thanks for the clarification. I don't know why the blogger would not accept your password. If there is a problem with transmission that I can address, please let me know.
"As I have also stated previously, I do not concede that Mr. Nifong did anything wrong in his prosecution of the Duke Lacrosse case, whereas Bill Wolfe, David Hoke, and Freda Black certainly did, and their innocent victims actually suffered."
Nifong did just about everything wrong in the lacrosse hoax that a prosecutor could. First, he started by trying his case in the media. Next, he continued the case when it was clear (after the DNASI and SBI dna reports) that he had no probable cause to prosecute. Finally, he lied to the court about the existence of exculpatory evidence.
Walt
To Walt:
Mr. Nifong did not lie to the court, and he never lied about "exculpatory evidence." The DNA evidence that Mr. Nifong was accused of withholding was not "exculpatory" by definition. Evidence that David Hoke withheld from Alan Gell's defense attorney was exculpatory. Just because no DNA evidence from the rape kit was linked to the LAX players does not mean that a sexual assault did not occur.
To suggest that the complaint was a hoax and no probable cause existed is ludicrous. The Duke Lacrosse team had a history of drunken and disorderly conduct, including public urination. Fifteen of the 47 members of the team had criminal charges brought against them (source from the N&O). The lacrosse player who called the escort service used a false name and said the services were requested for a small bachelor party... the services were acquired using false pretenses. The caller also requested white dancers. Independent sources gave testimony that racial epithets were used against the two African American women. Also DNA evidence from the accuser's false fingernail was linked to Dave Evans. Also Finnerty had a charge against him for his participation in a gang assault against someone believed to be gay. The lacrosse coach had been warned by the Duke president to rein in his players. All considered, and in light of reading the book "Last Dance for Grace: The Crystal Mangum Story," there is probable cause to believe that a sexual assault took place, and I believe that it did.
Sydney,
Your reply to Walt is littered with false statements.
Mr. Nifong did not lie to the court,
Either this statement is false or Mr. Nifong is incompetent.
Mr. Nifong has provided three separate explanations for DNASI's failure to include the unidentified male DNA in its report.
1. He was unaware of the missing data until he received the defense motion. He provided this explanation in court on December 15.
2. He was concerned about privacy.
3. He was overworked.
You have adopted the privacy excuse. As a result, you effectively claim that Mr. Nifong made a statement in court that is false.
The DNA evidence that Mr. Nifong was accused of withholding was not "exculpatory" by definition.
This statement is false.
"Exculpatory" evidence is evidence that tends to establish the innocence of the accused. Exculpatory evidence need not be conclusive.
This case depended on Mr. Nifong's ability to establish the credibility of the accuser. Ms. Mangum stated that she had not had sex for more than one week prior to the party. The discovery of DNA from several male sources in and on Ms. Mangum raised doubt as to the accuracy of her statement. The credibility of the accuser in a case with essentially no other inculpatory evidence is critical. Evidence that raises questions about the credibility of that accuser is exculpatory, even if it is not conclusive.
Evidence that David Hoke withheld from Alan Gell's defense attorney was exculpatory.
I agree. Moreover, the exculpatory evidence Hoke and Graves withheld was far more conclusive. They should have been disbarred.
Just because no DNA evidence from the rape kit was linked to the LAX players does not mean that a sexual assault did not occur.
It means that the specific sexual assault alleged by Ms. Mangum did not occur.
Ms. Mangum alleged a gang rape by attackers who did not use condoms. She was examined hours after the alleged attack. The failure to find DNA that matched the players from highly sensitive tests was conclusive evidence that her accusation was false.
Conclusive evidence that the accusation is false is fatal in a case in which there is essentially no evidence other than the accusation.
To suggest that … no probable cause existed is ludicrous.
This statement is false.
Mr. Nifong has conceded that there is "no credible evidence" to support the charges against the defendants. "No credible evidence" is not consistent with "probable cause."
I take it that you believe Mr. Nifong to be a liar or a fool.
DNA evidence from the accuser's false fingernail was linked to Dave Evans.
This statement is false.
DNA found in a soup-like mixture taken from a swabbing of several of the accuser's fingernails could not be excluded from that of Mr. Evans. Non-exclusion is not the same as being "linked."
All considered, and in light of reading the book "Last Dance for Grace: The Crystal Mangum Story," there is probable cause to believe that a sexual assault took place, and I believe that it did.
Mr. Nifong disagrees with you.
He has stated that there is "no credible evidence" to support the charges against the defendants. "No credible evidence" is not consistent with "probable cause."
The statements included in Ms. Mangum's book cannot be used to establish "probable cause" in a case that had ended long before its publication.
I suggest that you review the DPD case record. It tells a very different story.
Sidney Harr de Harr Harr
"To unbekannte:
Do you, like MSNBC legal analyst Susan Filan, believe that Mike Nifong damaged the sport of lacrosse? If so, could you explain it to me?"
Well, you really believe the obviosly innocent Lacrosse players committed a non existent crime, or that an obviously corrupt DA is really a good guy.
HA HA HA HA HA HA HA HA HA HA HA HA HA HA HA HA HA HA HA HA HA HA HA HA HA HA HA HA HA HA HA HA HA HA HA HA
Whatever happened to your pal Silly Chicken Killy? Remember him.
He squirms like a worm
He quacks like a duck
Silly Chicken Killy
Knows he's f----d.
Acknowledgement to decent(HA) honorable(HA HA) distinguished(HA HA HA) exemplary(HA HA HA HA) minister of injustice(HA HA HA HA HA) Nifong, as quoted by Benjamin Himan in his ethics trial.
You are stupid. He said "any other crimes". L2 read.
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