Prosecutors Question Nifong's Failure To Interview The Accuser

Back on the campaign stump, interim District Attorney Nifong attempts, in an interview with Benjamin Niolet of the News & Observer, to defend his failure to personally interview, and have the police investigators he directs re-interview, the credibility challenged instigator of the Duke Hoax. His disinterest is inexplicable given the massive inconsistencies between her statements and his own theories as well as nearly all the physical, forensic, and testimonial evidence. Clearly shaken by the resounding criticism resulting from his finally being cornered into admitting that, despite his efforts to encourage people to think otherwise, neither he, nor anyone in his office has ever bothered to personally assess the accuser’s credibility, or to resolve the many discrepancies between her multiplestories and reality.

To deflect the overwhelming amount of criticism he has been subjected to of late, Mr. Nifong pretends that his critics are only non-prosecutors with selfish motives. Continuing his theme of “everyone is out to get me,” DA Nifong states:

"For people who have never prosecuted cases to suggest they just can't believe I
would do that [have other people do the interview] seems kind of self-serving."

Apparently, Mr. Nifong is hoping that Durham County voters missed prosecutor Linda Fairstein tellinging ABC News:

“That is just against the progress that's been made in this very specialized field."

Far from having never prosecuted cases, Ms. Fairstein headed the Manhattan District Attorney's Sex Crimes Unit, an office that saw an estimated 4,000 rape accusations per year, for more than two decades. Ms. Fairstein, who is widely recognized as a pioneer in the field of sex crimes prosecution continued her scolding of Mr. Nifong by adding,

“It belies anything a prosecutor would do before making charges. There was no need to rush to the charging judgment in this case. … This whole train should have been slowed down and everybody interviewed before charging decisions. To have witnesses appear on a media program revealing information that the prosecutor doesn't know is stunningly inappropriate.”

Ms. Fairstein is not the only prosecutor to level significant criticism in the direction of DA Nifong for what he suggests, falsely, has only outraged the inexperienced and self-serving. Jonna Spilbor, whose law career includes stints as a prosecutor on the local and federal level with the Criminal Division of the San Diego City Attorney's Office and the United States Attorney’s Office, offered a scathing assesment of Nifong's failures at FindLaw.

“I can tell you that this failure to interview the accuser is rare, striking, and disturbing. It means that the D.A. failed to personally assess the accuser's credibility before filing charges against the defendant, or presenting evidence to the grand jury to obtain the indictments in the case. A District Attorney has a duty to justice. The saying is that "the government wins when justice is done," not when it gets a "Guilty" verdict. But this D.A. failed to make sure he was, in fact, serving justice by looking his accuser in the eye, listening to her story, and assessing her credibility for himself, just as he knew a jury someday would do. That story is extremely important here. The accuser, in her statements to police, maintains that, besides the defendants themselves, she herself was the only direct witness to the rape - which she says took place in a small bathroom, away from the rest of the party. That means witness testimony - her testimony - will be crucial here - all the more so, because the forensic evidence seems, thus far, to be utterly lacking. The DNA evidence, as noted above, simply hasn't held up.”

Spilbor wasn’t buying Nifong’s excuse that he feared becoming a witness either.

“Nifong has said that the accuser was traumatized at the time he first tried to interview her. But that's no excuse for this conduct. Nifong has said that, even in innocuous conversations, the accuser couldn't look him in the eye, and appeared on the verge of tears. And he's said that in a meeting on April 11 -- - about a week before he gave the case to the grand jury -- he and an investigator avoided discussing details of the case with the accuser because she was "too traumatized." (Attorneys bring investigators along to such meetings in part so that, if disputes arise as to what was said, the investigator - not the attorney - can become a witness in the case.)”

Bull Dog Pundit, a former Pennsylvania prosecutor, was also incredulous.

“As many of you know I was an assistant prosecutor for 3 years. During that time I tried a number of jury trials, including many rape cases. Based on that experience my jaw dropped at the latest revelation from Mike Nifong, the Durham county DA handling the rape allegations against 3 Duke Lacrosse players has yet to talk to the accuser about the events of that night. Wow. Just wow. To me, it’s basically prosecutorial malpractice that whomever is going to be handling the case has not spoken with her in the six (6) months since the allegation. I think I know part of the reason - the DA doesn’t want to have to tell the defense about any statement she gives to them, which they would be required to do under the rules of evidence…See, the problem here is that the defense could make a big deal of the fact that whatever the victim told the DA was told long after the events allegedly occurred, and the most reliable statement is one given in close proximity to the event, not one given months later. Rest assured that the defense attorney’s will have a field day comparing what the alleged victim says in court (if it ever gets that far) versus some of her statements soon after the alleged incident. But perhaps the most disturbing thing to me is that the DA hasn’t confronted the alleged accuser with the seeming inconsistencies of her own statements. We’ve seen from the discovery provided by the prosecution that there are many differing versions given by this woman on the night in question and soon afterwards. It’s puzzling why they didn’t try to resolve these conflicts by talking to her before giving charges.”

Timothy Baughman , who serves in the Wayne County, Michigan District Attorney’s Office as Chief of Research, Training & Appeals for that office was equally unimpressed with District Attorney Nifong’s ineptitude. Mr. Baughman joined other prosecutors in commenting at the Volokh Conspiracy.

“I've been a prosecutor for 31 years. The police do investigate, but the prosecutor makes the charging decision, and at least here (Wayne County, including Detroit) it would be unheard of to make the charging decision in a serious assaultive case, particularly a case of this sort, without interviewing the complainant (other than a homicide, of course). I've never heard of such a thing.”

Mr. Baughman, who has appeared before the United States Supreme Court five times and the Michigan Supreme Court over 60 times, continued his criticism of Mr. Nifong with an email to the National Review’s The Corner.

"I've been a prosecutor in Michigan for almost 32 years (I briefed and argued the Hudson v Michigan "knock and announce" case this year) and I was astounded to read that not only had the charges here been brought without the DA's Office interviewing the alleged victim, but that she has yet to be interviewed by the DA's office. One doesn't bringcharges in assaultive cases, especially of the sort here, without first interviewing the alleged victim. I've simply never heard of such a thing."

Andrew McCarthy , former federal prosecutor and recipient of the Justice Department's highest honors: the Attorney General's Exceptional Service Award and Distinguished Service Award, also chastised DA Nifong at The Corner.

“If the AP report is true, and the quotes from Nifong are accurate, that is just breathtaking incompetence. It is unethical to indict a case — not talking mere arrest here, but indictment, which is a much weightier step — unless a prosecutor is personally convinced that a rational jury would find a defendant guilty beyond a reasonable doubt at trial based on the facts that are known at the time of indictment. How can you indict a he-said-she-said case without first satisfying yourself about what she would actually say? Nifong is not a social worker, he's the prosecutor. It's not his job to inform himself about how the witness is doing. Of course, as a human being and as someone who has to work with a witness, you always ask such questions. But the prosecutor's principal task is to get the witness's testimony and evaluate it against other known evidence. Indictment can ruin lives. You don't do it unless you're confident you've got the goods.”

Completing our round up of Nifong critics with prosecutorial experience and without self serving motives, Pam Bondi, Hillborough County, Florida prosecutor and rehabilitated Nifong apologist, may have earned herself exclusion from the Hag of the Hoax contest with this evisceration of the DA:

“Greta…only if she was in a coma…and he couldn’t talk to her at all before then…is the only thing that I can seriously, possibly imagine. And I can tell you how we do business in Tampa…is that we bring in our victims for live intake…meaning you bring them into your office, you interview them because especially in a case like this, her credibility is everything. This case rises and falls on this victim’s testimony, especially since her fellow dancer has given so many different versions…so I mean if I was prosecuting this case…my office…we would have spent hours and hours with this victim by this point. Especially, like you said, when three young men’s lives hang in the balance.” On the Record with Greta Van Sustern 10/27/2006

It appears that Mr. Nifong’s attempts to deceive uninformed voters has not escaped the attention of many well respected prosecutors around the nation, who appear not only critical, but professionally offended by Nifong's highly questionable practices and petty rationalizations.

To close with the words of Greta Van Sustern from last Friday night:

“Well, I’ll tell you one thing, all eyes…all legal eyes…in the nation should be on the race unless something drastically changes and Nifong can convince us otherwise. We should all be watching this because this is in many ways a referendum on a system of justice down there. And we’ll be watching it.”