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Whiskey For My Men

by: Tony Soprano

The Year of the Hoax - Nifongisms

Some of our favorite Nifongisms from the Year of the Hoax:

"If this is all a hoax that was ... designed to get the lacrosse team ... what other major lacrosse program is behind that hoax? The presumed motivation would be to end the season of the Duke lacrosse team, and that's obviously been accomplished. Seriously, when you think about it, who would be motivated to do a hoax like that? What possible reason would somebody have to do that?"

"It's always been important for me that the district attorney's office in Durham represent the absolute peak of ability and integrity, and that's been my goal, to keep the office that way."

"I don't really intend to make any extra-judicial statements about the case."

"Having said something other than 'no comment' in the first place, it's kind of like going into Iraq. It's not a question of if you're right to go in there. It's a question of is it right to leave things a mess at this point in time?"

"The information that I have does lead me to conclude that a rape did occur. I'm making a statement to the Durham community and, as a citizen of Durham, I am making a statement for the Durham community. This is not the kind of activity we condone, and it must be dealt with quickly and harshly."

"We're talking about a situation where had somebody spoken up and said, 'Wait a minute, we can't do this,' this incident might not have taken place."

“I am convinced that there was a rape, yes, sir.”

"The circumstances of the rape indicated a deep racial motivation for some of the things that were done. It makes a crime that is by its nature one of the most offensive and invasive even more so."

"I've had conversations with (the accuser) about how she's doing. I've had conversations with (the accuser) about her seeing her kids. I haven't talked with her about the facts of that night. ... We're not at that stage yet."

"Well, I haven't been in the courtroom in the last year because I haven't had a case that was assigned to me. Obviously, there is now a case that the national media has shown real interest in, that I have said is going to be my case, and I will be trying that one in the courtroom."

"Well, I think that for some of the same reasons that the lacrosse case has captured the national media attention, it's captured the attention of the people in Durham in a way that it just seems to me that the issues that are touched on by this case are ones that the voters of Durham have a legitimate expectation that the elected district attorney will try that case for them. And I think that assigning it to somebody else would be to neglect those duties."

"The reason that I took this case is because this case says something about Durham that I’m not going to let be said. I'm not going to allow Durham's view in the minds of the world to be a bunch of lacrosse players at Duke raping a black girl from Durham."

"I think that I have a responsibility to prosecute this case. I think that really nothing about my view of the case and my view of how the case ultimately needs to be handled has been affected by any of the things that have occurred. You can make the case go away pretty easily. Anybody could. The next D.A., or me if I were so inclined. You can do it with the stroke of a pen. But that does nothing to address the underlying divisions that have been revealed. My personal feeling is the first step to addressing those divisions is addressing this case.”

"If a case is of such significance that people in the community are divided or up in arms over the existence of that case, then that in and of itself is an indication that a case needs to be tried."

"Their way of trying a case in the media is not to call press conferences, but to simply file motions and court papers that contain outrageous or false statements and assume that people will report them as if they were facts."

“On the other hand, [the accuser’s] ability to recall in great detail the events both prior to and during her assault suggested that, if any drug was administered to her, it was not one of those drugs commonly referred to as “date rape drugs.”

"I would not be surprised if condoms were used. Probably an exotic dancer would not be your first choice for unprotected sex."

"How does DNA exonerate you? It's either a match or there's not a match. If the only thing that we ever have in this case is DNA, then we wouldn't have a case."

"My guess is that there are many questions that many people are asking that they would not be asking if they saw the results [of the DNA testing] They're not things that the defense releases unless they unquestionably support their positions. So, the fact that they're making statements about what the reports are saying, and not actually showing the reports, should in and of itself raise some red flags."

"The state is not aware of any additional material or information which may be exculpatory in nature with respect to the defendant [Seligmann]."

"I have to note the irony...It's interesting now that they are trying to get information that would help dispute those tests."

"I've turned over everything I have."

"His report encompasses ever -- because we didn't -- they apparently think that everybody I speak to about, I talk about the facts of the case. And that's just, that would be counterproductive. It did not happen here."

"No other statements. No other statements made to me."

"We were trying to, just as Dr. Meehan said, trying to avoid dragging any names through the mud."

"I would like to think that somebody [not involved in the attack] has the human decency to call up and say, 'What am I doing covering up for a bunch of hooligans?' "

"Publicity, like anything else, is a two-edged sword. It can help in certain respects, and it can hurt in certain respects. Personally, I could live without it."

"By leaking things out like this, they can keep the case in the headlines -- see all these trucks that are still around here waiting for something to happen -- and kind of frame the case their own way. And say things like, 'according to my timeline' -- which of course, they don't know what my timeline is."

"If I had to speculate, I'd say this whole event took five minutes, maybe 10 minutes at the outside. I would ask the court to take judicial notice that when something happens to you that is really awful, it seems to take longer than it actually takes."

"I would wonder what, what evidence he thinks that he’s entitled would be on that telephone."

"And, I know that it looks sometimes over the course of the last few months that some of these attorneys were almost disappointed that their clients didn’t get indicted so they could be part of this spectacle here in Durham. And that’s the situation, we only indict based on our evidence we can’t indict everybody but we are entitled to present a case to the citizens of Durham whereby they can determine what occurred in this case."

"Have I personally identified...Do I know if the...to my knowledge that—I do not...To my knowledge, no one has done that yet."

"And one would wonder why one needs an attorney if one was not charged and had not done anything wrong."

"No attorney should have any objection whatsoever to complying with the bar rules."

The Human Piñata

The hits keep coming for the human piñata, Defendant Nifong.

Yesterday, the North Carolina Conference of District Attorneys issued an unprecedented statement denouncing Nifong’s hijacking of the Hoax. Today, Time asks whether Defendant Nifong is guilty as charged while reporting that the North Carolina State Bar intends to file additional charges against the Defendant. The editorial board of the News & Observer has finally demanded that Nifong recuse himself from the case. Perhaps the most telling sign that Nifong is nearing rock bottom comes from the Hoax defense attorneys, who called another one of Defendant Nifong’s bluffs on Friday by filing notice that they intended to call his own experts as witnesses for the defense.

North Carolina Conference of District Attorneys

The statement issued by the NC Conference of District Attorneys reveals Nifong has truly beome a pariah among his peers. Professor KC Johnson notes:

“Even more than the publication of the State Bar’s complaint, this action is unprecedented.

“Intriguingly, the Conference didn’t demand that Nifong recuse himself from the case solely because of the ethics complaint—the letter deemed Nifong’s recusal necessary “in light of all the developments of the Duke Lacrosse case, including the filing on December 28, 2006.”

“Conference president Garry Frank described the document as “the unanimous statement of the officers of the Conference of District Attorneys,” and confirmed that the executive board reviewed Nifong's handling of the entire case.

The statement ostracizing Defendant Nifong from the NCCDA also reveals the depths of deception to which Nifong’s few remaining apologists are willing to sink. On December 22, Nifong apologist extraordinaire, John Bourlon appeared by telephone with Fox News’ “Live Desk” host Martha MacCallum. In response to MacCallum’s skepticism over Nifong bungling of the investigation and prosecution of the hoax in total, and in particular Nifong’s failure to interview the accuser, Bourlon offered the following, misleading, response:

“I spoke with a district attorney yesterday in an adjoining county and I asked that very question because we just concluded the North Carolina Association of District Attorneys conference. Not one single elected district attorney in the 100 counties of North Carolina, that I’m aware of, has come forward and said this prosecution has handled this matter totally different than I would handle it. Not one! In my 27 years of experience, this is how every rape case proceeds.” LS Forum: Transcript of 12/22 Live Desk

Time

Time brings us confirmation this morning that the State Bar Grievance Committee will convene in January to address additional charges against Defendant Nifong.

“The Dec. 28 ethics charges are expected to be expanded when the state bar's grievance committee meets again Jan. 18. Like a grand jury, the committee meets periodically; the current ethics charges stem from its most recent meeting in October and cover public statements Nifong made about the case last March and April. At its next meeting, the committee will deal with revelations from a Dec. 15 court hearing in which the state's DNA expert admitted he and Nifong agreed to keep secret from the defense early DNA results showing no Duke lacrosse player could be implicated in an attack upon one of two exotic dancers hired for the March 14 house party.”

Time also advances the speculation of Nifong’s recusal from the Hoax to the welcome suggestion of his removal from office.

“Now that the North Carolina State Bar has filed a 17-page, 41-count ethics complaint against District Attorney Michael Nifong's handling of the Duke rape case, there's a different kind of New Year's countdown taking place in Durham: when and under what circumstances will Nifong leave office…All of this would be moot, of course, if Nifong were to resign from office or be forced off the case by the presiding judge. The North Carolina governor's office, which appointed him to the post, could also ask him to resign from office.”

News & Observer

Today’s demand that Defendant Nifong to remove himself from his hijacked Hoax is the News & Observer editorial staffs' firmest statement yet against the human piñata.

“Having to face the Bar's allegations, which carry the possibility of stiff sanctions, is reason enough for Nifong to remove himself from the case, and to do so immediately. Let judges or the state Attorney General's Office figure out what happens after that.

“Nifong essentially now has a conflict between his duty to pursue justice in the case, wherever that leads, and his need to defend himself from accusations of unprofessional conduct. If he proceeds as prosecutor, the public would be entitled to wonder: Is he charging on despite problems with the accuser's credibility and the lack of DNA evidence because he has a convincing version of events that has yet to come out -- or because he has painted himself into a corner with his comments? And did his desire to win an election influence his actions in this specific case?

“Nifong ought to do his job in a way that ensures justice, not one that merely seeks a
courtroom victory, no matter what. The State Bar's action only adds to the clarity of the right next step: Mike Nifong must leave the case.” N&O

Today’s demand indicates a clear departure from the pro-Nifong stance it took post-election. On November 12, editorial page editor Steve Ford, accepted Nifong’s election victory without qualms about the hijacked hoax that ensured his campaign success.

“Somebody would have been hard-pressed to vote against Nifong for any reason other than a belief that the lacrosse players are being railroaded.

“Does it amount to some kind of travesty, then, that Nifong is set to continue as D.A.? Not in my book.”

Nifong’s Witnesses to Testify for Hoax Defendants

Several months ago, Defendant Nifong submitted a list of the expert witnesses that he reasonably expected to present at trial. At the time, the list of nine experts added to the illusion that he had evidence to support his false allegations. To some degree, the experts present on the list have continued to fuel the delusions of Nifong’s last remaining windmill tilters. Recently a commentator at Talk Left opined:

“He has a witness list. If she sticks with it, he'll use it.”

Yesterdays’ declaration of intent to call the experts that Nifong pretended he reasonably expected to present is further indication Defendant Nifong has lost the game of chicken he has been playing with the truth from the beginning of the Hoax. As a kicker, the notice states that the defense testimony expected from the additional experts listed beside Meehan would encompass the material the experts provided to Nifong initially, further indicating that rather than probable cause, Nifong was in possession of evidence of actual innocence from the start.

Defense Notice

All Elected NC District Attorneys Issue Joint Statement Against Defendant Nifong

Recently Defendant Nifong offered the following grade school excuse for why he hadn’t been able comply with discovery obligations:

“You know it’s not the only case I have right now. I have two.”

Today, in a statement demanding that Defendant Nifong immediately recuse himself from the Hoax, the North Carolina Conference of District Attorneys notes that in September it offered the Defendant assistance, including additional Assistant District Attorneys, to help with the prosecution of the Hoax. To date, despite the additional demands of the second case undertaken in mid-October, Defendant Nifong has entirely ignored the offer.

"The conference said it had offered Nifong several different kinds of assistance in September, including additional assistant district attorneys and a practice jury. Nifong never responded to the offer, the group said."

The tacit refusal by Defendant Nifong to even acknowledge the offer of assistance from the Conference is a clear indication that he is indeed the rogue prosecutor that Stuart Taylor pegged as such many months ago. While the ignored offer of aid belies Nifong’s weak protestations, the big news certainly is that his peer group has reached its limits of embarrassment and has finally called him out.

The demand by the North Carolina Conference of District Attorneys, a group comprised of the state's elected district attorneys, comes on the heels of formal charges against Defendant Nifong by the North Carolina State Bar. The statement, issued on behalf of the entire Conference, was signed by the groups seven officers: Gary Frank (Davidson County DA), Clark Everett (Pitt County DA), Tom Horner (Alleghany, Ashe, Wilkes, and Yadkin Counties DA), Branny Vickory (Wayne County DA), Tom Keith (Forsyth County DA), Ben David (Pender and New Hanover Counties DA), Jim Woodall (Orange Chatham Counties DA) each signed the statement.

Citing the the concerns expressed to the officers and many of the other elected District Attorneys, the NCCDA issued its statement which concludes with the following demand of "Mr." not "DA" Nifong:

"It is in the best interest of justice and the effective administration of criminal justice that Mr. Nifong immediately withdraw and recuse himself from the prosecution of these cases and request the cases be assigned to another prosecutorial authority."

WRAL

See Related Links to Read Statement in Full

LS Forum: All Elected NC District Attorneys Issue Joint Statement Against Nifong

Civil Suit Enhanced

One interesting possibility presented by the charges filed by the NC State Bar against Defendant Nifong is the enhanced potential for civil liability resulting from a determination of misconduct by the Disciplinary Hearing Commission. It appears that the actions outlined in the complaint fall outside of Defendant Nifong’s role as a prosecutor and thus the actions described are not protected by the absolute immunity normally afforded a prosecutor.

"Ordinarily, prosecutors enjoy absolute immunity from civil liability in connection with their pursuit of a criminal case. That makes sense: As the Supreme Court has commented, exposing prosecutors to civil liability would undermine the functioning of the criminal justice system.

"But, not all prosecutorial conduct enjoys absolute immunity. To the contrary, in Buckley v. Fitzsimmons, the Supreme Court held that a prosecutor was not absolutely immune from civil liability for false statements made in a press conference and for other pre-trial investigative conduct; in that case, only "qualified immunity" applies.

"The Court explained that this is because "[t]he conduct of a press conference does not involve the initiation of prosecution, the presentation of the state's case in court, or actions preparatory for these functions." In other words, press conferences aren't an integral part of the prosecutor's job; they are an extra function that he chooses to perform. Prosecutors could opt not to do any press conferences, if they so chose, and
still perform all the core duties of prosecution.

"Thus, there may indeed be a way for the defendants, if acquitted, to sue D.A. Nifong for malicious prosecution: They must hinge their claim on his statements at press conferences." Spilbor

The burden of proof (preponderance of evidence) required in the anticipated civil suit is notably less than the burden of proof required by the State Bar Disciplinary Hearing Commission (clear, cogent, and convincing evidence). It stands to reason that, if Defendant Nifong is found to have committed misconduct by the higher standards of the DHC, he is likely to be found liable by a civil court requiring a lower standard of proof. Irregardless of what determination is made by the DHC, the simple fact that the charges were referred by the Grievance Committee, after careful evaluation as well as equal consideration of Defendant Nifong’s required initial response, bodes well for the prospect of a successful civil suit against Nifong.

With Defendant Nifong facing these charges, which will likely take months to resolve, as well as additional charges certain to follow from the State Bar and eventual civil suits, it appears likely that da is destined to wear the Defendant moniker for quite some time.

Defendant Nifong Responds to Charges

State Bar Moves Against Nifong

The Associated Press is reporting that the North Carolina State Bar has filed formal charges against Durham County District Attorney Mike Nifong.

"The North Carolina bar filed ethics charges Thursday against the prosecutor in the Duke lacrosse case, accusing him of breaking four rules of professional conduct when speaking to the reporters about the sensational case.

"The punishment for ethics violations can range from admonishment to disbarment.

"Among the rules District Attorney Mike Nifong was accused of violating was a prohibition against making comments "that have a substantial likelihood of heightening public condemnation of the accused."

"The charges will be heard by an independent body called the Disciplinary Hearing Commission, made up of both lawyers and non-lawyers.

"In a statement, the bar said it opened a case against Nifong in March 30, a little more than two weeks after the party where a 28-year-old student at North Carolina Central University hired to perform as a stripper said she was raped. " ABC

It should be noted that the Discipline Hearing Commision is the venue for the most serious cases referred by the State Bar's Grievance Committee.

"There are a number of actions that the Grievance Committee can take, depending upon the facts of your case. It can dismiss the case, issue a letter of caution or a letter of warning, or impose an admonition, reprimand, or a censure (see Definitions for explanations of these actions). In the most serious cases, the Grievance Committee may refer the case for trial before the Disciplinary Hearing Commission. When a decision is made in your case, you will be notified in writing." NC State Bar

Now that the complaints against him have progressed to the point where the NC State Bar will prosecute them before the Discipline Hearing Committee, DA Nifong can look forward to a two phase trial before the Committee which will consider whether there is "clear, cogent, and convincing" evidence of his misconduct and, if so, determine his punishment.

"The Disciplinary Hearing Commission ( DHC ) acts as the North Carolina State Bar's trial court. It is composed of 12 lawyers and 8 public members, who sit in panels of three to hear complaints of lawyer misconduct referred to it by the Grievance Committee. The DHC can also hear reinstatement petitions from disbarred lawyers and claims that a lawyer is disabled. All hearings before the DHC are open to the public. You can get a copy of the commission's trial schedule from the NC State Bar's website or by calling our office (919.828.4620). If your complaint is referred to the DHC for trial, bar counsel handling the case will let you know and will tell you if you will need to testify at the trial.

"In a trial before a panel of the DHC , the burden of proving the respondent lawyer violated a Rule of Professional Conduct is on the NC State Bar. The NC State Bar must show this by clear, cogent and convincing evidence. The trial occurs in two phases. In the first phase, the DHC panel hears evidence and then decides whether the charges of misconduct against the respondent have been established.

"If misconduct is found by the DHC panel, the second, or disciplinary phase of the trial, takes place. In this phase, the DHC panel considers evidence and decides what is the appropriate discipline to be imposed for the misconduct. Depending on what the evidence shows, the DHC can dismiss the complaint or issue a letter of caution, letter of warning, admonition, reprimand, or censure (see Definitions for explanations of these actions). It can also suspend the lawyer's license or disbar the lawyer. If the lawyer's license is suspended, the commission can “stay” or halt all or part of the suspension on various conditions, which creates a kind of probationary sentence."

The seventeen page complaint which includes charges of dishonesty, fraud, misrepresentation, and deceit, details over 40 extrajudicial statements made by the District Attorney, primarily during March and April. The charges do not appear to encompass the potentially more serious charges regarding his misrepresentations made to the court, and efforts to conceal evidence, both of which were brought to light recently.

"The complaint concludes that Nifong should have known his conduct was "prejudicial to the administration of justice" and that "Nifong engaged in conduct involving "dishonesty, fraud, deceit or misrepresentation." N&O

The charges against Nifong included violations of Ethics Rules Violations of 3.6(a), 3.8(f) 8.4(c) and 8.4(d).

Rule 3.6 Trial Publicity

(a) A lawyer who is participating or has participated in the investigation or litigation of a matter shall not make an extrajudicial statement that the lawyer knows or reasonably should know will be disseminated by means of public communication and will have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter.

Rule 3.8 Special Responsibilities of a Prosecutor

The prosecutor in a criminal case shall:

(f) except for statements that are necessary to inform the public of the nature and extent of the prosecutor's action and that serve a legitimate law enforcement purpose, refrain from making extrajudicial comments that have a substantial likelihood of heightening public condemnation of the accused and exercise reasonable care to prevent investigators, law enforcement personnel, employees or other persons assisting or associated with the prosecutor in a criminal case from making an extrajudicial statement that the prosecutor would be prohibited from making under Rule 3.6 or this Rule.

Rule 8.4 Misconduct

It is professional misconduct for a lawyer to:

(c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation;

(d) engage in conduct that is prejudicial to the administration of justice;

With District Attorney Nifong due to be sworn into office on January 2, it appears that one of his first tasks as duly elected DA will be to face a trial himself.

State Bar v. Nifong

Busy Bodies

Anyone with an adolescent son understands that the Mother-Son dynamic can become . . . well . . . problematic in those very interesting years of high school and/or college. In our family, my son and I had always been kindred spirits. We enjoyed poetry, and genealogy, and sharing the old family stories together. More importantly, he confided in me. But, as he left for college and started on a more independent path, naturally. . .he began to pull away from "Mom." Often, in those days, I was told that his life was "none of my business". . . that I should refrain from offering commentary or direction about "His Life." He became increasingly vehement and emphatic about it. And so, gritting my teeth (he is my oldest) . . . I tried.

He had a girlfriend in those days, whose career objective seemed to be marriage . . . IMMEDIATELY. Her mother, a physician, once closed her office for the day . . . because "The Kids" were having problems, and she needed "to save their relationship." During this rocky period, The Son actually spent two long days and nights in their home . . . "saving the relationship" (with the help of the Good Doctor, of course.) Intermittently, he would call from the guest room (panic rising), and beg one of us to drive there and rescue him. His best friend finally did attempt a hostage retrieval, but was met at the door by the Good Doctor and turned away. To this day, in the family, we enjoy re-telling this saga . . . now known forever as . . . the "Prisoner of Love" story.

That same year, on Mother's Day, The Son called, alarmed again . . . because the Marriage Talk had become very specific. He wanted to know what, if anything, I was doing to counter it? Had I told them my son was too young to get married? Had I told them my son still had several years of school? Had I told them to back off?

"No," I said . . . as I hadn't. "Why not?" he demanded. Because, this was His Life. His Business. As directed by him so many times, I was staying "Out Of It."

The resulting scorn was palpable. "That's your problem, Mom, when you SHOULD get involved with things . . . you DON'T!"

You just can't please adolescent sons or some addled Hoaxers either. From Melanie Sill to Herald Sun letter writers, the understandable concern of the national audience as they watch a malicious prosecution conducted unchecked before their eyes is meeting scorn and derision. This Lacrosse Hoax is none of our business. Get a Life. This is just, well, in the words of their now notorious D.A. Nifong . . . a "Durham problem that demands a Durham solution." Here are a few of my personal favorites offered by a few Durham natives and potential jurors. . .found, where else, than on the opinion pages of the "Nifong Herald Sun."

"Critics from elsewhere simply need to get a life"

"I have read in your editorial section, over the past several months, many letters concerning the Duke lacrosse case, written by people from around the nation. Their "interest" has puzzled me. Without fail, every one of these letters is pro-defense and vehemently anti-prosecution. Who are these busy-bodies? Do they think they have the right to tell us what's going on around here? Do I smell a rat? I could not care less about the outcome of this thing, but I do know that this team of gun-slinging defense sharks have shown a strong ambition to spin this entire saga by whatever means to their gain. I would not be at all surprised if they have put out a mailer to their colleagues around the country to fill our editorial pages with the kind of spin acceleration that serves only as defense propaganda.

"These letters also have a strong propensity to denigrate local government, posing them as bumbling idiots and shoddy bureaucrats. How many of them have ever even been here? Why are their lives so boring that Durham consumes them?"

Clifton Hunt

Durham

December 23, 2006

Mr. Hunt, I confess, I am one of those busy-bodies. But I swear . . . I never got the defense mailer. And, yes, you've nailed me . . . I've never been to Durham. I've never been to New Orleans either, but I was part of a local fund raising relief drive in my hometown for those folks in need. I've never been to Baghdad as well, but, for over a year, my sun-room was full of community donated items for goodie bags, sent not to soldiers I KNEW . . . but to soldiers whose names were submitted by chaplains, because their own families were unable to send them special treats. In my own hometown, I spend hours weekly with projects such as creating a free Family Garden for urban youngsters who might otherwise have no greenspace to grace their lives. I do have a life. Do you have a conscience? Newspapers all over the country have now twigged to the outrageous, possibly illegal framing of the three Duke students . . . but without "outsiders" pressing the story . . . some local folks like you would enable it, encourage it, or ignore it. Mr. Nifong drew us into this terrible tale, as he appeared on national newscasts last Spring . . . night after infamous night. He engaged us, and later, as the Hoax was revealed . . . enraged us. We are here to stay. But where have you been? Oh, yes, you've been out there "smelling a rat." Well, how far is your home from the D.A.'s office? The stench of this false prosecution would be overwhelming.

"Sick of lacrosse case"

"I am so sick of hearing about the Duke lacrosse rape case. I thought I was pretty fed up when the local and national press descended like the proverbial locusts earlier this spring.

"Admittedly I was peeved because I couldn't get my hair done at the Artistry Academy located on the same street. But that was April. This is December and I will be darned if I didn't see the beginnings of another media parade.

"Here's a question. What is so newsworthy about this story? Has reporting this story ad nauseam effectively changed the relations along the divides of race, gender and class in this city? Someone please explain to me how this "news opera" contributes to information that effectively governs the daily course of our lives.

"For me, as an instructor of mass communications,the biggest shame of this news debauchery was that pioneer African American journalist Ed Bradley's last piece for 60 Minutes dealt with this episodic, trivial pursuit. This case is not about truth and justice yet ironically it still is about the American way: money. I am sure if these indicted players hailed from lower tax brackets, there would be no high price defense
team."

W. Russell Robinson

Durham

December 23, 2006

Russell, civil rights have become "trivial pursuit" to you? Or maybe you believe civil rights laws don't apply to rich white Northern boys . . . those are just special laws used for just some special citizens and not others. Huh? We will soon see how many North Carolina politicians agree with you. If Easley et al stand silent in light of this kind of North Carolina "justice," they will have made a mockery of our justice system and themselves . . . just as you do. This case is all about "truth and justice." No one deserves to be railroaded, no matter their "tax bracket" or skin color. Wasn't that why we marched? Or was it just to switch from favored group to another? Many more poor blacks still suffer from small town hoodlum D.A.'s like Mike Nifong than do lacrosse players. This case could help open many eyes . . . and SHOULD. Beginning with yours.

By the way, Russell, do you ever see Melanie Sill at the Artistry Academy getting her hair done? Maybe that's the root problem of her pique over at the Editor's Blog. Something's annoying her . . . I'll vouch for that.

Yes, our Melanie at the N&O seems to be losing her patience with the "outsiders" commenting on the Editor's Blog. She posts:

"One of the points I made during the program taping is reinforced by these comments made on Christmas Eve and in the wee hours of Christmas Day: I have never seen a local criminal case that so completely consumed people so far away. It is truly a marvel of our times. The N&O has written countless stories about criminal justice and criminal defendants including the truly murderous as well as the falsely accused. None has induced the kind of obsession that surrounds this case. I'm not sure what it means, but through it all our focus at the N&O has been to work even harder at presenting clear facts and independent reporting. Part of that work involves judgments on what to include and to exclude -- we make these decisions every day, we discuss them to the degree that seems reasonable, and we have continued to try to do so in the face of a MIGHTY WIND here." (my emphasis)

For those of you who don't read the blog, the "mighty wind" blowing big time in Melanie's face . . . is mostly concerned with the N&O's decision to edit certain statements made by The Accuser to reporter Samiha Khanna in The Accuser's only interview, which appeared on March 25. In that interview, as The Accuser stood "with gym bag in hand" . . . (as we now know . . . ready for her nightly pole dancing duties at the Platinum Club) . . . she said a few choice things about the night in question. The N&O told us . . . it was her first time dancing provocatively for a group, it wasn't a great job, but honor student that she was, it fit her busy schedule of mothering and studying. But the soft voiced shy "Dancer," in describing what the N&O called "her ordeal," said some other things too. The N&O to this day has suppressed those statements. They are shrouded in mystery. But there are a few clues.

Editor Linda Williams writes:

"She provided a description of the then-unidentified second woman who had also been hired to dance at the lacrosse team party. She also offered an opinion about the other woman’s actions that night. The latter was clearly an opinion, offered without any substantiation."

Editor Michelle Valenzuela adds:

"We did not withhold any key information. Linda was trying to explain that when people are interviewed, some things that are not key to a story are left on the cutting room floor. There is a misconception about this supposed piece of information. It was not an accusation against Kim Roberts."

Editor Linda Williams popped in again:

"Again, for the record."

"As I explained previously, two things the accuser said did not make it in to print. As Ms. Valenzuela said, nothing about that information shed light on what happened that night, nor would the publication have made a difference in how this case has played out. As previously stated, the accuser offered a description of the second dancer hired for the party. The presence of a second woman at the party was already known, but she was not identified at that time. The description was withheld because it was irrelevant in the absence of any other available information about the second woman. The accusers' speculation about the actions of the second woman was also not printed. If we had printed that utterance - an admitted speculation without the slightest foundation to suggest the possibility of truth -- it would have been a conscious act of libel. Some people on this blog have speculated about the content of that specific utterance. You are wrong. Nonetheless, having made the decision not to print the speculation that was highly probably to be defamatory to several people, we have no legitimate reason to ever discuss publicly the specifics. Some of you have suggested that we should have printed it simply to show that the accuser was not credible. Such reasoning is curious. Moreover, it is neither legally nor morally defensible.

"I will not say what it was because it could be harmful to people who need not be harmed, and the accuser said she wasn't sure whether or not it was true. Our story reported what the accuser said happened not what she said MIGHT have happened."

Using The Accuser's own words to show her story is not credible is "legally or morally indefensible?!!!! Gosh, Linda, you do it every day against politicans you don't prefer. This woman has some special status to enable her to persecute these boys?

Anyway...My! My! All very mysterious . . . Such intrigue! Sometimes, just for a moment . . . I lose my focus and think I'm on the WTVD Board, back in the days when Cash Michaels was SH-A-AK-K-K-I--N-G and leaving his cryptic clues.

Yes, the N&O Editors seem very cryptic and even confused over there, trying to craft this story for us. But how well they crafted the story they wanted for the national audience last Spring!. They painted a poignant picture of The Accuser . . . a picture that largely remained in place for MONTHS . . . until the pole dancing video and the hidden DNA evidence were revealed. Evidence that The Accuser on the night of the Lacrosse party had multiple male DNA in her mouth, vagina, anus, and panties. Evidence that the only injury . . . "diffuse edema" and a few minor scratches . . . now coupled with her admitted motel "vibrator" appointment and being dropped in a strip club parking lot . . . turned the N&O portrait of the shy dancer into a tawdry Durham expose . . . and then, turned out to be all the "evidence" that the integrity-challenged Mr. Nifong seemed to have!

As the local paper, we "outsiders" assumed the N&O had the sources, ability, and journalistic responsibility to discover who and what this woman was. And, with the slightest of effort..in the early days..when it might REALLY have mattered, they might have presented a REAL PICTURE of the woman behind the charges. A rape accuser deserves a hearing, yes, but not a media make-over. We, the readers, deserve verifiable facts, not a fantasy of the alleged victim of a racially charged rape. We deserve the truth. That used to be what "reporting" was all about. Truthful reporting could have slowed Nifong or even shut him down.

Instead, their misrepresentations aided and abetted him. Just as they scoured Trinity Park, looking for every incensed neighbor to buttress their "Swagger Story" on the lacrosse team . . . one might have assumed fair reporters would have asked around a bit about The Accuser. Remember, one of the police that first night asked about The Accuser's children! Even we "outsiders" know that she was KNOWN! There had been another gang rape accusation against three other young men in her past. There was a serious, life threatening crime she previously committed. There were escort services and the Platinum Club . . . and Yolanda, who saw her dropped on the gravel of the strip club parking lot a few nights before. And probably much more, that the defense has yet to reveal. Slowly, at snail's pace . . . all this was revealed . . . but the N&O's early "portrayal" of the "victim," as they called her . . . would not be easily amended or corrected. The N&O created a false picture, a storyline about this Accuser, either through desire or design . . . that is still believed in many places and parts of Durham today. That's not reporting; that's advocacy!

The N&O's "victim" was the perfect foil for the rich swaggering white boys. Soft spoken, shy, crying, good student, Daddy's girl, mother, Navy vet . . . the newspaper cast her in a pink glow as they relayed her "ordeal." Furthermore, they enhanced the racial aspects of this case as they painted a picture of these two young black women, "crying" . . . huddling together in solidarity and suffering. Yet we know in some of The Accuser's early accounts to the various authorities, Kim Roberts was sometimes portrayed as a villain who stole her money and/or participated in the rape. So what did The Accuser tell the N&O on March 25 that they had to edit . . . and why? What "actions" of Kim's just had to go? The Big Wind at the blog is trying to blow the truth out of the musty corners of this flawed piece of reporting.

Melanie and Linda cannot fathom what the fuss is all about. The implication is, of course, that it is all coming from "Outsiders" . . . Out-of-Town bloggers and posters who need to "get a life." Yet it was "James" . . . a local . . . who posted this summary last night:

"The 'libel' excuse is not credible. I read the N&O daily and the paper conforms to industry norms, ie, will print what someone says knowing that it is what the person says - not what the N&O thinks.

"The 'reason' this was not disclosed (assuming that accuser stated Kim stole from her) was that if done you would have done all that legwork for nothing, ie, your accuser would not come off as a soft-spoken student that was new to stripping (the latter is not true and something you apparently chose not to investigate prior to publication). You appear to also have bent the meaning of 'student' (does one class count? two?) in a way that left the reader with the impression that she was full time.

"Regardless I read that article in print and noticed the 'charged' language immediately. The N&O generally avoids such tabloid articles but apparently it was too tempting. The only real difference between a 'story' and your 'story' is that in a 'real story' the N&O (and any other paper) does not take an editorial position or express support for an individual where you most certainly did (used language to garner support, excluded information, failed to investigate what was being said)."

The fact is this case, this outrage, this blatant example of prosecutorial abuse, this Hoax . . . is everybody's business. If nothing more than an ever-changing allegation from an accuser with "a long psychological history" offered in a political season can cause anyone to be indicted, then none of us are safe.

Melanie, and Linda, and Clifton, and Russell should direct their scorn at all the casual observers who are passively standing in the wings, silently watching The Show. Like the anonymous New Yorkers who watched from their windows as a screaming young woman named Kitty Genovese was stabbed to death many years ago . . . that type of self-interested detachment is appalling, sub-human. I'm proud to stand with the concerned Durhamites and Outsiders . . . shouting and hollering and stomping our feet for justice! Not working for our own self-interest, like the depraved mind that began this travesty, but for a greater good. I'm proud to stand with the writers and posters and bloggers demanding the truth. Our numbers are growing every day!

God bless the Busy Bodies!

Joan Foster

N&O Editors' Blog

New Video - Peculiar One

Peculiar One by Neonknightmare

Wendy Murphy Strikes Again

In a horrible distortion of fact, that should surprise no one who was witnessed her continual disdain for truth on cable pseudo-news shows throughout the duration of the Hoax, New England School of Law professor Wendy Murphy presents a defense of District Attorney Nifong’s continual deception in an op-ed published by the USA Today.

Despite Durham County District Attorney Mike Nifong’s admitted 50-plus interviews, his recent three hour interview with the New York Times, his numerous statements in pre trial hearings, his multiple motions filed with the court, his in-court responses to several defense motions, multiple statements from the accusers' family, many public and police statements by “outcry” witness Kim Roberts, multiple statements, written and oral, by police investigators and spokespersons, and the release of several statements, written and oral, by the accuser to the police, Murphy continues to put forth the false assertion that we have only heard from defense attorneys.

“For nine months, we've heard only from defense attorneys in the Duke case, and they've refused to release certain evidence.”

What certain evidence the defense has refused to release, Murphy, of course, does not specify. Murphy also ignores the fact that much, if not all, of the information put forth by the District Attorney, the pseudo-victim, and the police has proven to be false, including several statements to the court.

To continue, Murphy incredibly asserts the Nifong should be rewarded for respecting the defendants rights rather than punished for violating them. Bizarrely, Murphy contends this reward is deserved because Nifong has refrained from releasing some unknown, and non-existent by most all accounts save hers, evidence against them. Despite Nifong’s admission in his dismissal of the rape charges that he has no evidence other that the faltering word of his pseudo-victim, Murphy pretends that he might yet have something hidden in further violation of discovery statutes. Considering that he had no qualms about hinting at evidence that did not exist and leaking distortions of the scant “evidence” that did, it takes a huge stretch of imagination to believe that the DA without a conscience would, in consideration of the defendants, hold something back.

Incredibly, Murphy asserts that, in violation of discovery laws, Nifong may be withholding incriminating statements from the witnesses who have signed affidavits for the defense or photographs of an incident that never happened.

“Durham County District Attorney Mike Nifong may have eyewitness statements from the defendants' friends and photos of the incident. If so, Nifong should be rewarded for respecting the defendants' rights by not leaking the type of evidence that could help him personally respond to criticism.”

As “other things to consider” in support of her position, Murphy revives the debunked rumor that the accuser declined a $2 million dollar offer to back out of the case.

“The Wilmington Journal reported last June that a cousin of the alleged victim said she'd rejected offers of $2 million from Duke alumni to back out of the case.”

Citing as her source, the Wilmington Journal, Murphy fails to note that the rumor was discredited by Durham Police investigators and the accuser. The Wilmington Journal, Murphy’s cited source, has published the details of the investigation that disproved the rumor in a follow-up to its initial presentation of the transparent claims by continually discredited cousin Jakki, yet Murphy irresponsibly chooses to ignore the absence of substantiation, and proof of falsehood, while choosing instead to perpetuate the disproved rumor.

Additional considerations, that Murphy puts forth as supportive of her argument are equally unfounded. She contends, falsely, that the police lineup was not unfair by suggesting that the exclusion of non-LAX party attendees, and in the inclusion of the two players who have since proved to have not been in attendance, makes it fair. Ignoring the fact that the procedure, which violated DPD policy and the recommendations of the NC Actual Innocence Commission, was dictated by DA Nifong as a last gasp effort to manufacture an excuse to bring charges against someone - anyone, Murphy approves.

“The photo lineup was not unfair. Not all party attendees were players, and many players were not at the party. Thus, it is false to say there were "no wrong answers" the accuser could give in making identifications.”

To continue, Murphy suggests, falsely, that DA Nifong has relied on others to interview the accuser. Considering that the accuser was not interviewed by anyone from the DA’s staff until nine months after the accusation, it is difficult to imagine that Murphy herself can even believe that he relied on “responsible others” to do what never happened until after the withholding of exonerating DNA evidence was made public. Additionally, Murphy asserts that support for Nifong is widespread yet she fails to cite a single supporter to bolster her claim.

“Nifong is criticized for not speaking to the victim about the case, but his reliance on responsible others is proper. It protects him from being removed from the case as a "witness." Many law enforcement, forensic and legal professionals support the prosecution and have not backed off despite the hype.”

As her final consideration, Murphy presents additional distortions regarding the propriety of withholding discovery and the accusers' “injuries." Suggesting that it was proper, on behalf of the accuser, for Nifong and Meehan to conspire to hold back the exonerating DNA test results, a position that neither Nifong nor Meehan has taken, Murphy implies that DNA from several men not included among the admitted consensual partners of a “victim” is protected by rape shield laws. Ignoring the fact that the rape examination detected no vaginal injuries and only diffuse edema, Murphy states otherwise while suggesting, falsely, that the judge allowed discovery of the full DNA testing results for a reason other than the demands of North Carolina discovery law.

“Everyone learned last spring that DNA in the rape kit did not match that of the defendants. Information "held back" involved other men's DNA. This constitutionally protected private information should never be disclosed unless a judge deems it relevant. The defense argued that the evidence provides an alternative explanation for the victim's vaginal injuries, and the judge agreed.”

Thankfully, the USA Today did not run Murphy’s op/ed alone but rather presented it as a counter argument to its own call for the removal of DA Nifong. That the counter argument is presented by a crackpot such as Wendy Murphy is telling, as is the fact that her postion is bolstered by the same distortions that have been used to perpetuate the Hoax from day one. When one argument is bolstered by fact and the other by distortions, it becomes quite easy to discern where the truth lies.

New Prosecution Strategy

Merry Christmas

To All

Posting Resumes December 26

The LieStoppers Team wishes each and every one of you a blessed holiday season. Our blog posts will resume on December 26, but the discussion board will remain open for your comments and perusal. We had hoped for a brief respite from the ugliness and infamy of Michael Nifong, but the stunning machinations of Friday have made that a difficult feat. However, the almost universal comments of rebuke and derision that clung to Nifong's name on every cable channel were sweet and appropriate music to our ears. That unanimity about Nifong's egregious behavior will suffice to warm our spirits for the next several days. After the holiday, we will build anew from there.

As we celebrate the season with our own families and friends, we will be thinking of the three families we have all come to care so much about . . . the Evans, the Finnertys and the Seligmanns. We wish for them . . . as the words of the old Christmas Carol best express it . . ."tidings of comfort and joy." We will stand staunchly with them until our true celebration can begin.

To the now 410 members of the LieStoppers Forum, we extend our gratitude for joining us on our journey. We wish you a holiday filled with family, friends, and holiday festivities. Nifong and his few remaining enablers . . . the stubborn, the cynical, and the truly subversive...should not be allowed to infringe on the Peace and Joy of the Season for you. For months, you have researched and debated and deconstructed this Hoax, because you Believed. You have spent hours each day anonymously, for no recognition, no ulterior reason . . . other than this: you care about the rights of three strangers and the plight of their families. And you care about a system of justice where no one's son will ever be an election pawn or a panderers prop EVER again. Thank you for your perseverance and patience. Thank you for your dedication. Thank you for being an integral part of the LieStoppers Team.

We will focus for the next few days on the old stories and traditions that renew and inspire us. And we will remember that long journey to find the Prince of Peace. Our own long journey since last Spring has continued, day by day, undeterred . . . and now our ranks are swelling, hour by hour, on this blog, on the LS discussion board, and elsewhere. We have much cause to rejoice! Christmas, Hanukkah, Kwanzaa . . . are all affirmations of Hope. We have great Hope! And we pray that Collin, Reade and Dave are enveloped in Hope this season, and that all the families find joy in what my faith calls . . . "The Peace that Passes ALL Understanding."

So...God rest ye, Merry Posters . . . let nothing you dismay. You deserve it. Thank you for sharing your expertise, your creativity, your wisdom, and your wit . . . with our LieStoppers Team. Enjoy the very best of the Season!

On Tuesday, December 26, our policy states . . . ALL RETURNS will be joyously accepted.

Joan Foster

Injustice has spoken in the Duke lacrosse case

What Cash Michaels didn't write:

"A stripper claiming she was raped by Duke students, suspect in ways crystallized by DNA findings, is worth an investigation by the proper authorities and even some media coverage.

"But an issue like this is not worth another referendum on race relations.

"Enough already. It's time to wake up!

"Long before we learned about race, we were taught morals and decency. We were taught not only to judge folks by the content of their character but to have character if we were to ever sit in judgment of anyone.

"We will fall as a people if we don't start reminding ourselves of this quickly. We'll languish in self-inflicted purgatory. And, unlike our ancestors, we won't be a position to garner sympathy because we won't have any excuses.

"Black America will have no one to blame but itself and those we allowed to lead us, operating with impunity on the strength of our ignorance and indifference to what they do, purportedly, on our behalf.

"It's time for a morality check. By every one of us.

"Don't look at the white man. This is a black man talking to you.

"Merry Christmas!"

Steven A. Smith, Philadelphia Inquirer

Nifong Confesses to the NYT

In a three hour interview with the New York Times on Thursday, Durham County District Attorney Mike Nifong admitted that he was aware of the results of DNA testing prior to seeking indictments in the Hoax. DA Nifong also admitted that he knew the results to be both relevant and exculpatory.

"On Thursday, Mr. Nifong acknowledged knowing about those test results before any players were indicted last spring. He also acknowledged that the results were relevant and “potentially exculpatory,” and he said he should have given the results to the defense before May 18, the day he signed a filing that said “the state is not aware of any additional material or information which may be exculpatory in nature.”

District Attorney Nifong’s confession confirms the testimony given in court by Dr. Brain Meehan last Friday.

"Did Nifong and his investigators know the results of all the DNA tests?" Cooney asked.

“I believe so,” Meehan said.

“Did they know the test results excluded Reade Seligmann?” Cooney asked

"I believe so,” Meehan said. LS

While DA Nifong admits to his failure to comply with his legal discovery obligations, he excuses his illegal conduct as the product of an accidental oversight.

“But Mr. Nifong denied the defense team’s contention that he had deliberately tried to hide the results or delay their release. Mr. Nifong, who is personally overseeing this case, said that given the volume of evidence he had not realized that he had failed to turn over those specific DNA test results. “That wasn’t something I was concentrating on,” he said.”

Nifong’s transparent rationalization is belied by the continued testimony of Dr. Meehan.

"Was the failure to report these results the intentional decision of you and the district attorney?" Cooney asked.

“Yes,” Meehan replied." LS

Making Nifong’s anemic excuse more troubling, and highly questionable are his own actions to withhold the exonerating evidence from the defense. In court, DA Nifong mischaracterized his meetings with Dr. Meehan by specifically stating that those meeting did not include discussion of the evidence produced by Dr. Meehan’s testing. His false contention that the substance of those meetings were protected as work product, were readily accepted by a trusting Judge Ronald Stephens.

Conspiring with Dr. Meehan to exclude the exonerating results of the DNA testing from the reports, and denying that the meeting were evidentiary, were not DA Nifong’s only attempts to delay or withhold evidence. In September, DA Nifong offered a written objection, from Dr. Meehan to the court, in an effort to avoid compliance with the discovery statutes. In addition to presenting Meehan’s objection, Nifong also mocked the defense for wanting the information that he admits now they had rights to having several months prior.

The timing of this three hour interview with the New York Times appears to make clear that the spin which has followed the dismissal of the rape charges, and perhaps the dismissal itself, was a coordinated effort to undue the damage done by the latest indications of misconduct on the part of the District Attorney. As Nifong chatted with Duff Wilson, the recently promoted Linwood Wilson interviewed the accuser.

“As it happened, as Mr. Nifong made those remarks on Thursday afternoon, the woman was expressing new doubts to his investigator, doubts that forced him to drop the rape charges late Friday morning.”

Despite Nifong’s confession to knowing of the exonerating evidence prior to seeking indictments in April, Wilson allows Nifong to mischaracterize the DNA evidence as “new.”

“He also accused defense lawyers of using the new DNA test results as part of a campaign of “character assassination” against the accuser.”

The only thing new about the DNA test results is that the world now knows of them and the State Bar and Department of Justice now know that DA Nifong colluded with the lab to hide the results while he abused his prosecutorial discretion in bring charges against men proven to be innocent by those tests.

The magnitude of deception revealed by Nifong’s confession to the Times and Dr. Meehan’s admissions in court becomes crystal clear when the District Attorney’s, and Police Investigators’, knowledge of this definitive evidence of innocence is put into context of their subsequent words and actions. From an investigative standpoint, these test results, presented on April 10 to Nifong, Inv. Himan, and Sgt Gottlieb, offered concrete evidence of the innocence of each of the four players identified by the pseudo-victim as her three imagined assailants during the contrived lineup session of April 4, 2006. Addressing the press yesterday, defense attorney Joe Cheshire makes this point abundantly clear:

"Last week, it was clearly demonstrated that significant exculpatory evidence had been purposefully withheld from the defense in this particular case. It should not be lost on you all, who have covered this case, that significant exculpatory evidence proved that there was no sexual contact between these young men and this woman.”

With the knowledge that eighteen separate DNA samples recovered from the accuser’s nether regions within a few hours of the imagined non-event matched at least five other men but none of the forty-six suspects, Nifong, Himan, and Gottlieb proceeded willfully to frame innocent young men for a crime they did not commit. Consider some of the actions by these men in the days that immediately followed the revelation by Dr. Meehan.

• Nifong, Himan, and Gottlieb met with the false accuser on April 11, 2006 to, if you chose to believe Nifong, inform her on how the case framing the innocent men would proceed.
• Nifong, on April 11, 2006, stumped at a North Carolina Central University forum by laying out the “evidence” against the framed young men and assuring the community that he was certain a rape had occurred and that he would continue to seek “justice.”

"I assure you by my presence here that this case is not over."

“We're still waiting for the results of DNA tests.”

“In 75 percent to 80 percent of sexual assaults, there is no DNA evidence to analyze.”

"It doesn't mean nothing happened. It just means nothing was left behind."

• Following the NCCU forum, Maj. Ron Hodge, the assistant chief of the Durham Police Department would add to Nifong’s message, "I don't think we would be here if it wasn't (a strong case)."
• In an interview with the Charlotte Observer that ran on April 11, Nifong explained away the reported lack of DNA by stating, "I would not be surprised if condoms were used. Probably an exotic dancer would not be your first choice for unprotected sex."
• On April 12, 2006, Nifong prepared the indictments, that Himan and Gottlieb would present to the Grand Jury a week later, and motions to seal the indictments he confidently expected to be returned from the Grand Jury as a true bill a week later. Sealing the indictments ensured the campaign serving perp walk photo opportunity rather than allowing the framed young men to surrender as they were willing to do.
• On April 13, 2006, investigators working under the direction of chief investigator Nifong entered Edens dorm without a warrant and attempted to interview players without their attorney’s present after first perpetrating an email ruse, using a lacrosse players Duke University email account. The ruse appears designed to frighten a false confession or at least create panic as it suggested that the player whose account was used would come forward with false information.
• On April 13, 2006, Nifong, with ominous foreshadowing, abruptly cut off Wade Smith and other defense attorneys when they attempted to show him additional exculpatory evidence. In refusing to view the evidence, Nifong told the attorneys that he knew more about the case than they would ever know and that he intended to indict two players.
• Dr. Meehan, on April 14, 2006, asked for and was provided with a limited selection (24 pages) of the underlying data produced by the SBI during its regular autosomal DNA testing. Despite finding proof of actual innocence, Meehan continued with the quest to build a case against the innocent men.
• On April 17,2006, co-conspirators Himan and Gottlieb testified before the Grand Jury. That a true bill was given the indictments reveals that they testified not to the innocence demonstrated to them by Dr. Meehan’s finding but rather to a false case showing the possibility of guilt.
• On April 18, 2006, Nifong refused to meet with Reade Seligmann’s attorney, Kirk Osborn, who also wanted to share exculpatory evidence with Nifong. Dismissing Osborn by proxy, Nifong sent a messenger to say, “I saw you on the TV saying your client was absolutely innocent, so what do we have to talk about?”
• Inv. Himan signed two sworn affidavits on April 18, 2006 that stated his belief in the guilt of Collin Finnerty and Reade Seligmann. These affidavits were used to establish probable cause for search warrants in an attempt to obtain additional evidence to help frame the young men he knew to be innocent.

Nifong’s attempt to spin his misconduct, via Duff Wilson, into a simple oversight of “something I was [not] concentrating on” appears to fail the smell test horribly. While it is clear that he did then, and continues to now, ignore the evidentiary value of the DNA tests, it appears that considerable effort was put into avoiding disclosure of that evidence. Not only was considerable effort put into not disclosing the evidence, but also the investigation and prosecution proceeded as if it did not exist.

Consider as well the efforts that were put into spinning the public perception of the value of the DNA testing.

"How does DNA exonerate you? It's either a match or there's not a match…If the only thing that we ever have in this case is DNA, then we wouldn't have a case."

"The absence of DNA doesn't prove anything."

"DNA results can often be helpful, but, you know, I've been doing this for a long time, and for most of the years I've been doing this, we didn't have DNA. We had to deal with sexual assault cases the good old-fashioned way. Witnesses got on the stand and told what happened to them."

"It doesn't mean nothing happened. It just means nothing was left behind."

"I would not be surprised if condoms were used. Probably an exotic dancer would not be your first choice for unprotected sex."

"To say, well, you know, her profession was not really the most honorable in the world, we really don't have the strongest case in the world because there's no DNA, so let's forget about it. Well, ladies and gentlemen, that's not doing your job."

Considering, in total, the extreme efforts by DA Nifong to spin the DNA test results, to hide the complete results, and now to lessen the implications of the revelation of his misconduct, it would appear that the exonerating evidence is, in fact, something that he was concentrating on. Concentrating on hiding, hiding from, and spinning, that is.

Adding to the comedy of the NYT story, is Nifong’s assertion, by email, that he was willing to follow the evidence. Quite clearly that has not been the case but rather the opposite of nearly everything he has done in promoting his Hoax.

"Mr. Nifong declined interview requests Friday, but said in an e-mail message that his decision to dismiss the rape charges showed he was “willing to go in whatever direction the evidence takes me.”

Perhaps the most curious item presented in the New York Times PR piece is Nifong’s assertion that he would drop the case if the accuser was unable to identify her “assailants.”

“If she came in and said she could not identify her assailants, then we don’t have a case,” Mr. Nifong said

Considering that on two separate occasions she did indeed come in a fail to identify her “attackers,” Nifong’s contention that her failure to identify would end the case is blatantly untrue. In fact, it has been demonstrated that the manufactured, made-for-video, lineup session on which the indictments were based showed a great deal of uncertainty on the part of the accuser. If identifying four people as her three attackers, inventing a mustache that never was, and “recalling” people who weren’t even at the party is not a clear indication of uncertainty, nothing is.

Curiously, Nifong appears to be trying to lend material to the defense’s argument that the photo identifications should be suppressed.

“You can’t always tell from a photograph,” he said.

Bizarrely, Nifong asserts that the accuser’s ability, or not, to identify the accused in court on February 5 will be determine whether the case continues or dropped.

“The only real time that you’re able to say if you have a misidentification is to put the person in the courtroom with the other people.”

Mr. Nifong said he intends to ask the woman about her level of certitude after February’s hearing. “It’s an opportunity to say, ‘Yes, I’m 100 percent certain these are the people who did it,’ ” he said. “It’s also an opportunity to express doubt.” Given the absence of physical evidence, he said, any doubts from the woman could end the prosecution for one or more of the defendants.

Considering the accused’s faces have been plastered on television screens, magazines, and newspapers nearly non-stop since Nifong’s false prosecution began, it hardly seems as if an identification now, or six weeks from now, would have any merit. At this point, if Reade Seligmann showed up at my door, my dog would be able to identify him. How Nifong could suggest that identifying three men, who will obviously be the youngest people sitting at a table of attorneys, is the only way to know whether there has been a misidentification is a mystery that defies comprehension. I wonder why the NC Actual Innocence Commission left that one out of their recommendations for eyewitness identification.

Retirement Planning

Christmas Spirit

Nifong The Painmaker

On the Friday before Easter, District Attorney Nifong announced that he would seek indictments the following Monday. Certainly his announcement made for an awful holiday weekend for families uncertain who would be indicted. On the Friday before Mother's Day, Nifong announced that he would seek a third indictment the Monday after the holiday. Again his words made for a tormented holiday for the families involved. Today, the Friday before Christmas, Nifong sends another holiday greeting declaring his intention to carry on and re-write the script once more. He appears intent on squeezing every last ounce of pain out of these families before he gives up.

If what appears to be well orchestrated prosecution spin is any indication, Nifong’s dismissal of the first-degree rape charges is a ploy intended to help him tiptoe around the DNA evidence and the conspiracy to withhold it from the defense. As has been the case throughout the hoax, Nifong turns to loyal enablers Duff Wilson, Victoria Peterson, and the infamous unknown person close to the investigation to make an anemic effort to portray his prosecution as one with merit.

The New York Times Duff Wilson goes to bat for Nifong by presenting comments from the co-chair of Nifong’s citizen election committee, Victoria Peterson. Curiously, or not, Wilson fails to mention her affiliation with Nifong, describing Ms. Peterson as a supporter of the accuser and a friend of the family.

“Today, one supporter of the woman, whose identity has not been revealed, said she still believes her.”

“I think when a woman has been sexually assaulted and sexually abused and she can’t explain everything, when you have had three men attacking you, I can understand if she wouldn’t know if she was raped by a penis or other item,” said Victoria Peterson, who is active in the black community in Durham and is a friend of the accuser’s family.

To help make his case, Wilson also returns to the unknown person close to the investigation.

“When she was interviewed on Thursday by an investigator from the district attorney’s office, the woman said she was penetrated from behind while she was bent over with her face toward the floor, but did not know with what, according to a person close to the investigation who would only speak on condition of anonymity.”

"With the absence of D.N.A. and her not knowing what was going on, it’s the right thing to do and it probably makes the rest of the case stronger," the source said.”

NCCU Law Professor Irving Joyner, who has been monitoring Nifong’s handling of the case for the NAACP, makes a similar effort in the News & Observer to characterize the dismissal of the charges as a strengthening of the case.

“But Irving Joyner, a professor of law at N.C. Central University, said Nifong's decision to drop the rape charges actually could strengthen the case for sexual assault and kidnapping because it will de-emphasize the importance of DNA results that failed to provide evidence of rape.

“In North Carolina, the criminal penalties for first degree rape and first degree sexual assault are the same, he said, meaning the accused men are in no less peril.

“If her [the accuser’s] testimony is that she was moved from one part of the house to another against her will and there was sexual touching, then he [Nifong] can build a case on those charges,” said Joyner, who was been monitoring the lacrosse case on behalf of the state NAACP.

While turning the liabilities of exonerating DNA evidence, and a conspiracy to withhold that evidence, into assets may have been Nifong’s intention, Professor Joyner notes that this desperate act is foolhardy at best.

“But Joyner, who said this week that Nifong should consider recusing himself from the case, said that defense attorneys probably will use the accuser’s confusion about whether she was raped to undermine her credibility in the eyes of jurors.

“The ability of the state to prove its case is going to be burdened by the inconsistent statements. No doubt about that,” Joyner said.”

In a press conference in response to Nifong’s new script for the Hoax, esteemed defense attorney Wade Smith appealed to Nifong’s humanity by asking the District Attorney to “do the honorable thing." (We won’t hold our breath on that one.) Joe Cheshire took a different tact and savaged Nifong’s attempt to again reinvent the Hoax. In graphic detail, Mr. Cheshire tore the last script apart as he listed each of the numerous times that the accuser has detailed with great description being vaginally penetrated by a penis.

In dropping the rape charges, DA Nifong notes that the accuser is now uncertain whether she was actually raped or penetrated vaginally by something other than a penis. From the NYT:

“The document said that in an interview with investigator Linwood Wilson, “the victim in this case indicated that while she initially believed that she had been vaginally penetrated by a male sex organ (penis), she cannot at this time testify with certainly that a penis was the body part that penetrated her vagina.”

“Since penetration of the vagina by a penis is one of the elements of this offense that the State must prove beyond a reasonable doubt, and since there is no scientific or other evidence independent of the victim’s testimony that would corroborate specifically penetration by a penis, the state is unable to meet its burden of proof with respect to this offense.”

As Cheshire noted, one of the only consistencies in the various versions of the script presented by the accuser has been the use of a penis. Absent the rape charge, DA Nifong is still left with much explaining to do. Adding a new version of events to the stack of previous tales does nothing but work to further destroy the credibility of both the District Attorney and the Hoax-tress. Even if one were to believe that a person assaulted from behind may not know whether or not penetration was made by penis, other body part, or object, it does not change the fact that the accuser has claimed to be vaginally penetrated from the front as well as from behind.

"Matt then raped her vaginally from the front," she wrote in one of her
variations.

Contrary to the prosecution spin, the dismissal of the rape charges do not take the DNA evidence and the conspiracy to withhold it out of play. Even if Nifong is able to sell the local and media zealots on the idea that the accuser may have been mistaken about the rape accusation, the sexual assault charges still rest shakily on the prevarications of the accuser. This many fables all include graphic descriptions of physical and sexual contact that have been disproved by the DNA testing Nifong conspired to withhold.

Dropping the rape charges does not erase the absence of DNA from any player in or on the accuser nor does it devalue the scientific expectation that it would have been found if her tales of being raped anally and orally are to be believed. Doing away with the rape charges does not add merit to the accusers suggestion that two of her assailants ejaculated and that she had the ejaculated sperm in her mouth before spitting on to the floor near the toilet. Her description of that event was so detailed it even included the graphic note that the encounter had left her with bad breath as a result. While it may be technically easier for Nifong to make a case without the rape charges, and certainly it appears that this is his intention, it is nonsensical to suggest that the total absence of the accused’s DNA is suddenly made irrelevant.

The nonsense of it all did not, however, prevent local lunatic John Bourlon from taking up for his pal Mike. Bourlon went so far off the deep end as to predict that the falsely accused young men would now plead to the remaining charges.

Another advantage to the defense with this latest prosecution concoction is likely to be found in the support it offers for their motion to suppress the photo identifications. Uncertainty over what body part may have been used and a change to an assault only from behind will likely make it more difficult to support the notion that the identifications were anything more than a guessing game with no wrong answers.

Most importantly for the defense, however, is the apparent admission by the District Attorney, in today’s filing to drop the case, that his case is supported by no evidence other than the word of the truth challenged accuser.

As the Hoax moves along it becomes more transparent and it becomes increasingly apparent that DA Nifong’s ambition was not merely to get himself elected but also to inflict as much pain as possible along the way.

Rape Charges Dismissed, Nifong Presses On

In the wake of revelations that he conspired with Dr. Brian Meehan, the director of the lab that conducted DNA testing in the Hoax, to withhold exculpatory evidence that demonstrated that no rape occured, District Attorney Mike Nifong has filed a motion to dismiss rape charges against the three innocent men he has been railroading. Citing the accuser's uncertainty as to whether a rape occured, the motion to dismiss was submitted this morning, months after Nifong assured the public that a rape had occurred.

"Nifong filed paperwork to dismiss forcible rape charges against Reade Seligmann, 20, Collin Finnerty, 20, and David Evans, 23."

"The players were indicted last spring after a North Carolina Central University student told police she was beaten and raped by three lacrosse players while performing as a stripper at a March 13 team party. The players have denied any wrongdoing in the case, which has split the Durham community in recent months."

"Nifong's investigator interviewed the woman Thursday, and she told the investigator that she couldn't testify "with certainty" that she was raped." WRAL

Vindictively, the man without a conscience expressed his intention to continue to pursue kidnapping and sexual assault charges now that it has been demonstrated that the rape accusations were false.

“Nifong said he plans to proceed with kidnapping and sexual assault charges against the three players.” WRAL

It should be noted that the decision to have henchman Linwood Wilson finally interview the accuser comes only after exculpatory DNA evidence Nifong, Meehan, and others had kept secret was made known.

"It's highly coincidental," [David Evan's attorney Joe] Cheshire said, that the charges are being dropped a week after the director of a private DNA testing lab acknowledged that he initially, with Nifong's knowledge, withheld from the defense test results showing none of the players' DNA was found on or in the accuser's body. Herald Sun

More than three months after falsely stating to the court that the accuser had “ability to recall in great detail the events prior to and during” the imagined assault, it appears now that DA Nifong will again attempt to reinvent the Hoax.

"“The victim in this case indicated that, while she initially believed that she had been vaginally penetrated by a male sex organ ... she cannot at this time testify with certainty" that it occurred, Nifong wrote. Since such penetration is one of the elements the state must prove beyond a reasonable doubt in a prosecution of a charge of first-degree forcible rape, "the State is unable to meet its burden of proof with respect to this offense,” he continued." N&O

With his case entirely shredded by medical and scientific evidence that he had been aware of for months, his reputation in tatters now that his conspiracy to hide evidence has been revealed, and facing the prospect of investigation by the State Bar and the Department of Justice at the urging of an increasing number of public officials, law professionals and legal scholars, DA Nifong now appears intent on desperately bringing forth a newly invented version of events to weasel his way around the overwhelming evidence of actual innocence.

While it remains to be seen what tale the reinvention of the hoax entails, it is certain to defy the affidavits sworn to by Inv. Himan, the tall tale presented to the Grand Jury in order to secure indictments, the accuser’s detail handwritten version of the imagined events, her statements in the manufactured photo ID session, and DA Nifong’s many public statements.

While it certainly is good news and cause for celebration to see the most serious charges dropped, this latest shameless legal maneuvering is quite frightening. Rather than do the right thing now that his misconduct has been outed, the District Attorney appears intent on pursuing his persecution with continued disregard for truth, justice, ethics, and reality.

Who will stop this monster?