Lester Munson, Legal Expert

In a recent post entitled "The Sports Reporters," Professor KC Johnson highlighted the pathetic coverage of the Hoax by Lester Munson, legal “expert” for Sports Illustrated. Professor Johnson writes:

"While espn.com has featured the weak but neutral Roger Cossack as its case legal analyst, cnnsi.com has employed the outrageously biased Lester Munson. “Using his legal training and expertise,” claims his website, “Munson [speaking of himself in the third person] is able to gather and to analyze material not often found in routine sports coverage. He is able to put criminal charges and civil litigation in the sports industry into a context that gives new insights into each case and into American pop culture.”

Munson’s first case-related comments came on April 18. Despite the court filing from Mike Nifong’s office that DNA would exonerate the innocent, Munson immediately downplayed DNA’s role. “There are hundreds of convicted rapists in prison,” he contended, “even though there was no sign of their DNA in the examinations of their victims . . . Lawyers for the accused players can talk endlessly about DNA, but the absence of DNA is not conclusive by itself.” He implied that the team had a history of “previous predatory conduct,” and expressed little doubt that a crime occurred: “There is always an element of brutality in what occurs. In the Duke situation, it may be the number of athletes joining in the attack. In the Tyson case, the attack was brutal.”

The next day, Munson gave an interview under the headline of “Duke lax players are staring down a tough trial.” Downplaying Reade Seligmann’s alibi evidence, he asserted incredibly, “The police and the prosecutor will scrutinize this evidence in exquisite detail, and if they find something is askew, that something doesn't fit in the alibi evidence, they will not hesitate to charge Seligmann with yet another crime. That would be obstruction of justice.” Could Seligmann in fact have been innocent? Very unlikely, proclaimed the legal “expert”: “You don’t see many alibis in criminal cases—it's a very rare thing. Ordinarily, 99 times out of 100, the police have the right guy, and you'll find that most people arrested were involved in something. Getting the wrong guy is very unusual.” Munson offered no evidence to support his extraordinary assertion.

Munson also offered a Wendy Murphy-like theory as to why Nifong had initially only indicted two players. “The question we must ask,” he not-so-sagely observed, “is whether this third player is in the process of negotiating with the prosecutor and is seeking immunity from prosecution or is seeking leniency for his testimony against the other players.” And asked on how the DNA test results would affect the case, Munson was unequivocal: “Its absence is not important. There are hundreds of men in penitentiaries across the United States who were convicted of rape without their DNA being found on the victim. It does help the defense to some extent, but it's not conclusive. The whole idea that DNA evidence was somehow conclusive was the invention of the defense lawyers.” Munson obviously never read the March 23 NTO motion.

In June, Munson made what could be termed an obligatory appearance for all Nifong enablers, offering his insights on the Nancy Grace show. Remarking that he had “studied this at some length,” he assured Grace’s viewers that “the state has probably a better case than most observers are describing . . . Mr. Nifong is a seasoned, experienced prosecutor. He is not stupid . . . I think that Nifong is probably managing the discovery in such a way that there may be some surprises for these defense lawyers further down the road.” Munson seemed unaware that the state of North Carolina has an open discovery statute.

Nifong’s dropping the rape charges did not make Munson any more reasonable. The decision to dismiss the charges, he theorized, “is not a big surprise.” (It was a surprise to just about everyone else.) Munson noted that “there is little doubt that something unsavory happened at the party on March 13,” and—amazingly—looked for “the accused players to attempt to settle everything with a guilty plea on lesser charges.”

[Update, 11.27am: I e-mailed Munson to ask if he still held to his April, June, and December views; he replied as follows:

I remain convinced that something bad happened in the lacrosse captains' house on that night. The women left in a hurry. The women are working girls and they felt a sence of menace that caused them to bolt. The broomsticks may have been a factor. The police reports include an inventory of what was left behind, e.g., their money. Was there a rape? Maybe not. Probably not based on what we now know. When I report a rape case I look at the brevity of the encounter, the brutality of the sex, the injury to the victim, the outcry witnesses, and previous predatory behavior of the accused. This formula allows me to avoid the useless statement of "he said she said." Using my calculus, the evidence of a rape is minimal. Is there enough to get the case to a jury? Is there enough even to continue with the case now in the hands of the attorney general?

I am baffled by the conduct of Mike Nifong. When we began reporting on the case, we were told that he was a perfectly respectable and experienced prosecutor. That appears to be incorrect. The suppression of the exculpatory evidence is probably a crime. As a lawyer and as a journalist, I am appalled at what he did . . .Why would another son of impressive wealth go out of his way in Georgetown to beat a gay man for no reason?

You ask for a reference on the fact that most people who are arrested are guilty and plead guilty. I believe that is common knowledge. The number of criminal cases tried to verdict in the criminal justice "system" is miniscule. If there were not plea bargains, the "system would collapse. If you need a reference, I would suggest "Courtroom 302" by Steve Bogira, a wonderful and detailed account of a year in the life of a courtroom in a busy criminal court.

It is heartening to see that Munson has now condemned Mike Nifong, which he did not do in December. The "something bad happened" argument [what, exactly?] appears to be his last defense. I know of no evidence about "broomsticks," and also the women did not leave in a hurry--they didn't leave for almost 50 minutes* after the broomstick comment. (*Per the accuser's latest revision, they did not leave for more than 50 minutes after the imagined attack concluded.)

Curiously, Sports Illustrated prefaces several articles by touting Munson as:

“legal expert Lester Munson, who is closely following the case involving members of the Duke lacrosse team”

This introduction mistakenly gives the impression that Mr. Munson is a legal expert and is aware of the revealed facts of the case. It seems, however, neither impression is true.

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Given Mr. Munson’s woeful history with the Illinois Attorney Registration And Disciplinary Commission , an agency of the Illinois Supreme Court that investigates “allegations of misconduct by lawyers” and prosecutes “the cases where a lawyer's misconduct suggests a threat to the public or to the integrity of the legal profession,” and his continued misrepresentations of the facts of the case, it is difficult to understand what qualifies him as a legal expert and what constitutes “closely following the case.”

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Equally confusing are both Mr. Munson’s assertion that he is “baffled by the conduct of Mike Nifong” and the mock disdain he shows in this comment: “As a lawyer and as a journalist, I am appalled at what he did . . .” With a penchant for misconduct that is well documented by the Illinois Attorney Registration And Disciplinary Commission, including “conduct which is prejudicial to the administration of justice,” one might expect that Munson could relate quite well to Defendant Nifong’s actions and current difficulties with the North Carolina State Bar. With regard to Defendant Nifong, one might expect that the combination of Munson's personal experience and self promoted ability "to put criminal charges and civil litigation in the sports industry into a context that gives new insights" would not leave him baffled nor appalled.

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After his admittance to the Illinois State Bar in 1976 and practicing law for 13 years, it appears Munson, facing multiple charges of misconduct occurring during a time he was already on probation by the Ilinois Bar, voluntarily agreed to discontinue practicing law. As a mitigating factor in his misconduct, Munson pointed to his alcoholism. In its 1991 decision to suspend Munson’s law license because of his continued misconduct while on probation, the Disciplinary Commission wrote:

“On September 30, 1986, Respondent was suspended from the practice of law for three years and until further order of the Court, and this suspension was stayed and Respondent was placed on probation for three years with conditions. In re Munson, No. 85 CH 57, M.R. 4029. Respondent's misconduct included his neglect of three client matters as well as misstatements regarding the status of two of the client matters. Respondent's misconduct was attributable to his alcoholism.”

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“In October 1989, Respondent discontinued practicing. Respondent has no current intention to return to the practice of law.”

At the risk of stating the obvious, it is amazing that Sports Illustrated's so-called legal “expert” is one whose ethical lapses led him to stop practicing law in order to lessen the consequences of his misdeeds. Considering that the Disciplinary Commission found Munson engaged in conduct “involving dishonesty, fraud, deceit or misrepresentation,” it is no surprise that his coverage of the Hoax has been equally distorted.

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Regarding Mr. Munson’s “expert” assertion that “99 times out of 100, the police have the right guy, and you'll find that most people arrested were involved in something. Getting the wrong guy is very unusual,” it should be noted that Durham County and US Department of Justice statistics belie his false statement. Under disgraced District Attorney Mike Nifong, over half (52%) of the cases disposed in 2005/2006 were done so by dismissal contrary to Munson's assertion of "the fact that most people who are arrested are guilty and plead guilty." This percentage of dismissals is slightly greater than the statewide average of 48% for the same period. A review of the Department of Justice’s annual Compendium of Federal Justice Statistics reveals that, on average annually, approximately one third of all suspects investigated are not prosecuted, and nearly half of those suspects prosecuted by Federal agencies are found not guilty. For example, in 2002, of 124,074 suspects arrested 36,347 (29%) defendants had no criminal cases commenced against them, while 42.3% were either not prosecuted or were found not guilty of the crimes for which they were arrested.

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As for Mr. Munson’s numerous misrepresentations regarding the Hoax and his continuing efforts to cast aspersions on the victims of Defendant Nifong’s malicious prosecution, Professor Johnson’s dissection noted above demonstrates well that Lester Munson either is not “closely following the case” as SI pretends or is again willfully misrepresenting facts.