Hijacker of the Hoax Replaced By Gell Prosecutor and Former Co-worker

In a case that needs no additional irony, the prosecutor who decided to retry Alan Gell, despite evidence of his actual innocence and prosecutorial misconduct in withholding that evidence, will now replace Defendant Nifong as prosecutor of the Hoax.

Citing the conflict of interest created by his upcoming trial before the State Bar Disciplinary Hearing Committee, Durham County District Attorney Mike Nifong has requested that a special prosecutor be appointed by Attorney General Roy Cooper. In a press conference today, AG Cooper announced that he has granted Defendant Nifong’s request, effectively ending Nifong’s reign as Hijacker of the Hoax. Longtime prosecutor Jim Coman, who is the head of the NC Attorney General’s Special Prosecution Unit, as well as the former head of the SBI lab, and Mary Winstead will be the primary attorneys assigned to the case, according to Cooper. Promising to seek truth and justice while respecting all those involved, Cooper stated that the special prosecutors would approach the case with eyes wide open on evidence and closed to everything else.

If the hoax proceeds to trial, it will not be Coman's first attempt at placing innocent men behind bars. In 2003, despite the revelation that prosecutors David Hoke and Debra Graves withheld evidence that exonerated Alan Gell of murder charges that had sent him to death row, Coman decided to put Mr. Gell on trial for a second time. Later Coman would testify at the State Bar trial of Hoke and Graves to the effect that withholding evidence was standard policy in the Attorney General's office.

"In September, the state's senior prosecutor was in an unusual place: the witness stand. And what he said has caused quite a stir among lawyers around the state.

"Jim Coman said under oath that the state Attorney General's Office had a policy of withholding a certain type of evidence helpful to defendants.

"The prevailing view when I was there the first time, both under Judge [Lacy] Thornburg and Attorney General [Mike] Easley and now Governor Easley," Coman said, "was that just because something embarrassed a witness or might be impeaching to them, did not in and of itself, unless it went to being exculpatory, was not something we had to turn over." N&O

Coman would later rationalize his admission by clarifying that he misspoke.

"I was not very precise," he said. "My use of the term 'impeaching' or 'impeachment' ... would have not been accurate." N&O

In fairness, it should be noted that Brad Bannon, in a letter to the State Bar, described Coman's conduct, in the trial that exonerated the former death row inmate, as honest and honorable.

"...Mr. Coman (who was Agent Ransome’s boss and head of the SBI during the first trial of Alan Gell, and who did a very honest and honorable job as lead prosecutor in the second trial of Mr. Gell)... " Bannon Letter

Having once voiced over a tape in evidence, the second prosecutor assigned to the Hoax, Mary Winstead, is also not unfamiliar with prosecutions involving questionable, at best, conduct by prosecutors. Nor is she unfamiliar with with Defendant Nifong and the Durham County District Attorneys office.

"Superior Court Judge Leon Stanback granted a motion by the defendant's attorney, Public Defender Robert Brown Jr., to send the tapes to Florida to be examined. Brown said an expert there will use computer analysis to identify voices on the tapes."

"Brown made the request a day after another expert in Raleigh was unable to adequately reconstruct the tapes. Brown said the tapes are crucial to his case because they will show the victim's demeanor before and after the assault."

"The tapes, which have the victim's voice on them, will be used in the trial of Timothy Malloy, who is charged with rape and sexual assault at a Durham gas station where he worked."

"Prosecutor Mary Winstead said she accidentally erased a small portion of both tapes while she was listening to them in preparation for the trial. "

"Somehow her voice and that of a detective ended up on one of the tapes, she said.The tapes were taken from an answering machine belonging to a friend of the woman who reported the rape early April 25, 1992." N&O September 29, 1993

The prosecutor who replaced Winstead when the case made it to trial? Mike Nifong.

The decision by Defendant Nifong to beg for recusal comes the day after it was publicly revealed that his chief investigator, Linwood Wilson, obtained from the accuser a new version of the Hoax that appears clumsily tailored to weave its way around the published accounts of the overwhelming evidence of actual innocence. Wilson's meeting with the accuser on December 21 was the first time anyone from Nifong's office had spoken to the accuser about the facts of the case since her allegations were made on March 14.

It appears that this newly remodeled script for the Hoax, and Defendant Nifong’s decision to employ the new script as the basis for dropping the more easily disproved rape charges, while pressing forward with the remaining charges, may have been the straws that broke the Hoax’s back. While the State Bar has denied that the timing of their filing of charges of misconduct against Defendant Nifong was tied to anything but the Grievance Committee’s request that they be filed as soon as possible following its mid-October decision to forward the charges to the DHC, the fact that the formal filing came only six days after Nifong’s decision to continue to pursue the sexual assault and kidnapping charges, suggests a connection.

It should be noted that when it was revealed that Nifong had dispatched henchman Wilson to obtain the new script from the accuser, it was widely speculated that the decision to finally hear the accuser's tale was prompted by the December 15 sworn court testimony of Dr. Brian Meehan, lab director for DNA Securities Inc., who revealed that he and Nifong had conspired to withhold the full results of DNA testing from the defendants. In part, that speculation was fueled by the timing of the decision to finally interview the accuser as it closely followed the public bombshell of this additional misconduct. Also fueling suspicions about the timing was the coordination of the December 21 interview with Nifong’s simultaneous three hour interview with the New York Times.

Today, The New York Times confirms that the pressure on Nifong began to build with the reaction to the December 15 testimony of Dr. Meehan.

“According to friends, Mr. Nifong’s resolve had begun to falter even before the ethics charges were brought against him.

“At a court hearing on Dec. 15, a DNA laboratory director admitted that he and Mr. Nifong had deliberately withheld exculpatory information from a report. Mr. Nifong prided himself on integrity, having been a conscientious objector during the Vietnam War, yet the laboratory director’s testimony and his acknowledgment of the error undercut his reputation.

“Things only worsened from there.

“Some fellow district attorneys advised Mr. Nifong privately in Raleigh on Dec. 19 to take himself off the case. Mr. Nifong felt stunned and subdued, friends say, yet still could not bring himself to exit. In an interview with The New York Times two days later, he described such a step as tantamount to letting defendants handpick their own prosecutors. But then the North Carolina State Bar filed an ethics complaint on Dec. 28, taking him to task for his early public comments about the case. It was an unprecedented rebuke for a prosecutor in the middle of a legal brawl. The next day, the North Carolina Conference of District Attorneys issued a news release asking him to recuse himself immediately.

"Mr. Nifong’s friends told him he had two choices: dismiss the case or ask the attorney general to take it over.”

Defendant Nifong’s move to scurry away from his hijacked Hoax returns the reins to Crystal Mangum, whose false allegations initiated the Hoax. In recent weeks, Ms. Mangum has garnered a small, but surprising, amount of media sympathy from some who had attempted to paint her as a victim of Defendant Nifong. Her complicity in the re-scripting of the Hoax, and her stated intentions to press forward with her claims, should put to rest any lingering doubts that she has been anything less than a willing accomplice. Defendant Nifong’s decision not to be the last rat to jump from the sinking ship came after consultation with Mangum.

"In a two-hour meeting at his office on Thursday, Mr. Nifong and an aide talked about the choices, an official involved in the case said. He told the accuser that a trial would be brutal, but that he had already talked with the attorney general’s special prosecutions unit and trusted that office to give the case a fair review. He asked what she wanted to do.

“She was concerned about the effect of the case on Mr. Nifong’s career, the official recalled. She wanted to sleep on the decision. She continued to insist she had been sexually assaulted.

“On Friday, she and Mr. Nifong spoke by telephone. She again said she wanted to go forward. Although she was not happy about Mr. Nifong’s giving up of the case, the official said, she said she understood his reasoning and pledged to cooperate with any new team.”

While at the District Attorney’s office yesterday, Ms. Mangum was served with a subpoena issued by defense attorneys demanding she be present at the February 5 Hoax hearing. In his press conference today, AG Cooper noted that it was too early to know whether that hearing will take place as scheduled. This week, files will be transferred from Defendant Nifong’s office to the special prosecutors for a “fresh and fair” review. Cooper noted, as well, that the new prosecutors may need to request additional information, recheck the received information, and may also conduct re-interviews. Cooper noted that it is likely that the new prosecutors will speak with witnesses, members of the Durham Police Department, and District Attorney Nifong as part of its review.

With the Attorney General's office intent on interviewing the participants in the Hoax, it seems very likely there may soon be a run on defense attorneys in Durham.