While Criticism of Nifong Grows, Ashley Stands By His Man

WRAL is reporting that UNC Law Professor Joe Kennedy has joined the growing legion of legal scholars, public officials and media pundits calling for action against Durham County District Attorney Mike Nifong.

“A University of North Carolina at Chapel Hill law professor said Monday he also believes there should be an investigation of Mike Nifong's management of the Duke lacrosse rape investigation.

"I think the best course of action, at this moment, is for Mike Nifong to remove himself from this case or for him to be removed," said University of North Carolina at Chapel Hill law professor Joe Kennedy.“

"The statement comes after Rep. Walter Jones, R-North Carolina, last week, sent a letter to the Department of Justice asking for a federal investigation into possible prosecutorial misconduct and to determine whether the defendants' civil rights were violated.

“Kennedy said that Jones' request seemed overblown to him until allegations later arose that Nifong and a lab director purposely withheld DNA results showing none of the charged players' DNA was found on or in the accuser's body.

“He said the allegations create a serious conflict of interest.

"I think his actions with respect to nondisclosure of this DNA information needs to be investigated," Kennedy said.

In addition to the criticism from Professor Kennedy, WRAL notes that there is growing outrage from other North Carolina District Attorneys. These concerns about Nifong’s misconduct from his peers are expected to be address at some point by the North Carolina Conference of District Attorneys.

“According to Garry Frank, president of the North Carolina Conference of District Attorneys, however, other district attorneys have also expressed concerns about Nifong's conduct.

"It's premature to comment while the court is still contemplating," Frank said. "I think the conference will address this at some point"

Professor Kennedy’s call for action and the NCCDA’s anticipation of action follow several other recent public statements decrying Nifong’s misconduct as revealed most clearly by his conspiracy to withhold exculpatory evidence from the innocent men he has framed with his Hoax. USC Law Professor Susan Estrich was unmercifully scathing in her assessment of Nifong.

“The goal is supposed to be to convict the guy who did it, not frame the guy you’ve got.

“Somebody should tell that to Mike Nifong. Or to the judge who is in a position to do something about who prosecutes the Duke lacrosse players charged with rape.

“What is going on in the prosecutors’ office in Durham North Carolina is disturbing in ways that go beyond the ugly allegations that started this case.

“The District Attorney has clearly lost sight of his mission, and with it the last remnants of any ethical compass. The case has been characterized, since the outset, by a clear failure to follow the office’s own procedures and practices.

“According to testimony given under oath this week, the head of a private DNA lab said he and the District Attorney together agreed not to release evidence that there was DNA from other men, but not from any of the defendants, in the woman’s underwear and on her person the night of the alleged incident.

“Together, they decided not to release it. Imagine. One of those people is supposed to be an officer of the court and the representative of the people, not head gladiator.

“How could the District Attorney keep that information to himself, or try to?

“What is he out to do here?

“Enough is enough.

“What will it take for Mike Nifong to be replaced on this case?

“If ever a prosecutor had shown himself to be no longer capable of exercising the sort of judgment required of him to be fair, it would be this prosecutor in this case.” FOX News

North Carolina native Dr. Thomas Sowell was equally biting in his criticism of both District Attorney Nifong and the local NAACP.

"After all this time, it finally came out in court last week that the DNA samples collected from the underwear and private parts of the alleged victim contained DNA from other men -- but none from the Duke lacrosse players who were accused of raping her. The head of the DNA testing laboratory testified in court under oath that both he and Nifong knew this and kept it secret.

"You think that is incredible? How about a statement made afterwards by District Attorney Nifong that he didn't say anything about this publicly because he was "trying to avoid dragging any names through the mud"? He certainly did not avoid dragging the names of the Duke lacrosse players through the mud. He not only denounced them, they were paraded in handcuffs in front of the national media. Their pictures were on every television news program across the country.

"If these young men get completely exonerated, this episode will still follow them the rest of their lives. Yet they have not been convicted of anything and have not even gone to trial -- which is scheduled for next spring, if it ever takes place.

"Indeed, they have not even been interviewed by the police or by the District Attorney who issued denunciations of these white lacrosse players when he was running for office and making a play for the black vote. Nor has the District Attorney
interviewed the woman who claimed to have been raped.

"In a "he said, she said" situation, anyone interested in the credibility of the two sides would at least have tried to find out what specifically they claimed.

"But that is only if you care about the truth, rather than the politics of the situation. Politically, the District Attorney had a black woman who claimed that white men had raped her. That's all he needed to get elected.

"Far more is involved in this case than the misdeeds of one District Attorney. There is a segment of the black community -- a small segment, we can hope -- that figures it is payback time for all the black men who have been railroaded to jail on trumped-up charges involving the rape of white women.

"The local branch of the NAACP, an organization which fought against such injustices in times past, has thrown its weight behind those who are trying to railroad three white students, who were not even born when these other injustices occurred."

Duke Law Professor James Coleman was also incredulous at the depths of the misconduct now apparent.

"I tell you, the more you hear about his missteps, the more you have to question whether it's purely a matter of incompetence or worse,"

District Attorney Nifong’s misdeeds have become so transparently obvious that he even finds himself the butt of SNL skits mocking his hoax. [Link to SNL Clip]

US Attorney General Alberto Gonzalez has forwarded the request for a federal investiagtion sent to him by North Carolina Congressman Walter Jones to the Civil Rights Division of the FBI for review.

The U.S. Attorney General says his department is considering whether to investigate the Duke Lacrosse rape case. North Carolina Congressman Walter Jones sent a letter to the Justice Department asking for a federal probe. Eyewitness News has learned the Justice Department's Civil Rights Division is reviewing the letter. WTVD

The demand for investigation by Rep. Jones included allegations that Nifong has violated the civil rights of the defendants through his misconduct.

"I think the way this district attorney has handled the case is questionable at best," Jones said in an interview with The Chronicle. "There are serious questions as to whether these three young men have had their Constitutional rights violated."

Jones renewed his call for an investigation in a second letter to the US Attorney General.

In a letter yesterday to U.S. Attorney General Alberto Gonzales, Third District Representative Walter B. Jones (R-NC) reiterated his December 7th request for a federal inquiry into Durham County, North Carolina District Attorney Mike Nifong’s prosecution of three Duke University student athletes accused of an alleged sexual attack on a woman at a party earlier this year. Specifically, Rep. Jones asked the Attorney General to review new evidence that Mr. Nifong withheld exculpatory DNA results from the defendants to determine if his conduct has illegally denied the students their civil rights as U.S. citizens under federal law. More from Rep. Jones

North Carolina State Representative Stephen LaRoque publicly endorsed Congressman Jones' demand for a federal investigation of Nifong yesterday.

"State Rep. Stephen LaRoque, a Republican from Lenoir County, also weighed in. He endorsed Jones' call for a federal investigation and suggested a change in state law to allow prosecution of prosecutors who engage in professional misconduct.

"Only the N.C. State Bar has the authority to punish incidents of legal misconduct. "That's like having the fox guard the henhouse," LaRoque said."

University of Maryland Law School professor Jason Trumpbour, speaking on behalf of Friends of Duke University, endorsed Rep. Jones call for a Department of Justice investigation and requested that Duke University follow suit.

“Yesterday, the Friends of Duke University enthusiastically endorsed Congressman Walter Jones’ call for the Justice Department to open an inquiry into the misconduct of Durham District Attorney Mike Nifong. We also urged Richard Brodhead, President of Duke University; Robert Steel, chairman of the Duke University Board of Trustees; and all other members of the Board of Trustees to publicly endorse Congressman Jones’ request.”

Even Duke University President Richard Brodhead strayed from his tacit support of District Attorney Nifong’s persecution by offer this milquetoast statement:

"As I told Ed Bradley during a '60 Minutes' interview last summer, given the concerns that have been raised, when it goes before a judge and jury the DA's case will be on trial just as much as our students will be," Brodhead said. "In the meanwhile, as I have said before, our students must be presumed innocent until proven otherwise."

With the walls closing in on his Hoax, it appears that at least on Nifong enabler remains on board. Determined stay the course with the sinking ship that is Nifong’s Hoax, Bob Ashley’s Herald Sun rationalizes Nifong’s legal transgressions which he mischaracterizes as little more than “prosecutorial sloppiness.”

“Let's consider the case against Nifong. There is no question the DA has made mistakes in handling this hot potato of a case. He said things he shouldn't have, such as calling the players "hooligans" and wrongly predicting DNA tests would implicate them. He gave too many media interviews at the start, a mistake he has corrected by falling competely silent except in court.

“And as we learned in court Friday, the director of a DNA lab in Burlington at first withheld results showing the accuser had DNA from other men -- not the lacrosse players -- in her underwear and on her pubic hair. The defense is trying to imply a conspiracy existed between Nifong and lab director Brian Meehan to keep the results secret. But those alleging prosecutorial misconduct have to deal with a simple fact -- Nifong did turn over the data. Defense lawyers' only real complaint is that they had to fight to get it.

“Nor did Nifong explain the information sufficiently, defense attorney Joe Cheshire complained. "We had to try to discover what it meant," he said. Sorry, but we don't think a judge will dismiss the case because Nifong didn't provide Cliffs Notes.

“Of course, Friday's DNA revelation was as much about the accuser as it was about Nifong. We may find the results disturbing, but let's remember what we're supposed to know about rape cases. Rape is still a crime even if if the accuser was provocatively dressed or if she was a stripper. Rape is still a crime if the accuser had
consensual sex with other people. We know she is not a paragon of virtue. But that does not rule out rape.

“The biggest elephants in the room are still sitting there -- the accuser's charges and the players' presumption of innocent until proven guilty. Yes, there is information that may cast doubt on whether a crime was committed. But is it enough to outweigh the accusation? That's for the courts to decide. There have also been instances of, at a minimum, prosecutorial sloppiness. But are they enough to toss the case?

“That's for a judge to decide, as part of the judicial process, which should be allowed to work.”

Whether out of deep denial, profound arrogance, intentional complicity, or a sense of self preservation, Ashley remains determined to continue spinning for Nifong. Despite having two reporters present at last Friday’s hearing, the Herald Sun pretends that there was no agreement between Nifong and Meehan to withhold clear exculpatory evidence from the defense. Two reporters from the Herald Sun witnessed Meehan’s confession to exactly that conspiracy yet Ashley will still try to deceive his readers into believing that the conspiracy is a figment of the defense attorney’s spin.

With mocking disregard for the laws of the State of North Carolina, the Constitution of the United States, and the ethics of the legal profession, the Herald Sun chides the defense attorneys for having to fight to protect the rights of their clients from the attempts by the District Attorney to frame them for a crime that obviously never occurred.

For the Herald Sun, it is apparently acceptable for the District Attorney to lie to the court. In no small part, disbelieving and uncovering those lies was part of the fight by the defense attorneys. One would expect that fight to be applauded but for the Herald Sun it is to be mocked. Knowing that the complete results of DNA testing that exonerated each of the defendants was being withheld, District Attorney Nifong stated to the court in a written filing:

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

In other statements to the court, DA Nifong denied that anything substantive was discussed in meetings with Dr. Meehan. With the power of the State behind him and the trust afforded a District Attorney, Nifong intentionally deceived the court. The Herald Sun, despite having two reporters present to witness Dr. Meehan’s confession under oath which revealed Nifong’s multiple lies to the court, pretends that his transgressions are little more than “sloppiness” erased by the eventual revelation of the evidence hidden for months by the conspiracy, a revelation which came to pass only because the defense attorney’s knew to not take Nifong at his dishonest word.

Despite the Herald Sun’s efforts to ensure the opposite, the truth is finally starting to come out in full. As unconscionable as the Herald Sun’s trivialization of Nifong’s misdeeds is, the rationalization is not at all surprising. After all, this is the same newspaper that championed the District Attorney’s office’s dismissal of drug related first-degree murder charges a month ago. LS