LS In The News

LieStoppers Pictured on ABC Affiliate WTVD

"Media Faulted in Duke Case" -- Nick Madigan, Baltimore Sun, April 12, 2007

"A lot of the commentary has been uninformed and underinformed," said Philip Wood, a marketing executive in Raleigh who last summer started a blog, LieStoppers (liestoppers.blogspot.com), to try to poke holes in the case being developed by Durham District Attorney Michael B. Nifong, who later removed himself from the case and is being investigated for prosecutorial misconduct.

"The lack of accurate information has highlighted the condemnation of the accused players," Wood said yesterday. In particular, The New York Times "seemed to use their stories as editorials."

After the Times ran a front-page article about the case Aug. 25, Wood and fellow writers on the LieStoppers blog "pulled an all-nighter," he said, to refute some of its points.

The Times "corrected a few facts, but nothing significant," Wood said. He said the paper's coverage improved once David Barstow, a Pulitzer Prize-winning investigative reporter, began covering the case late last year.
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Wood reserved particular opprobrium for The Herald-Sun in Durham, whose articles, he said, were often "thinly veiled" in their support for Nifong. "It was consistent in nearly every piece," the LieStoppers blogger said. "They've attempted to downplay the charges against Nifong."

JC Watts and The Nifong Cite

As D.A.M.N. Appreciation Week draws to a close in Durham, we find another reminder of the nearly universal acceptance of the disrepute brought to the justice system by District Attorney Mike Nifong and his hijacking of the hoax.

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In his twice monthly column for the Pahrump Valley Times, JC Watts , former chairman of the Republican Conference of the U.S. House, where he served as an Oklahoma representative from 1995 to 2002, employs the Nifong cite by using Nifong’s scandal as an example of “government judicial shenanigans” to firm up his dual arguments that injustice occurred in the case of former Border Patrol agent David Sipe and that public servants who cheat must be held accountable.

“Sometimes, we have to step back and ask whether justice truly is being served.

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“On Jan. 26, a district court in Texas handed down an acquittal of David Sipe in a case that has stretched on for six years. Sipe, a former border patrol agent, was indicted for the use of excessive force in his dealing with an illegal alien.

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“Sipe caught the man crossing the border into the United States in 2000. Sipe said he was acting in self defense at the time of the incident. At his original trial in 2001, Sipe was convicted of the offense. The jury's verdict rested, in part, on the testimony of an illegal alien.

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“Sipe's lawyers appealed the verdict and sought a retrial after it was discovered that, in exchange for his testimony, the government had provided the illegal alien with a variety of benefits, including a Social Security card, a permit allowing free travel between the United States and Mexico, and living expenses. At the time of the trial, federal prosecutors denied that any such benefits had been provided.

“Sipe was granted a retrial, at which he was acquitted of the offense.

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“Earlier this year, we witnessed a similar affront to justice when North Carolina district attorney Mike Nifong resigned from the Duke University lacrosse rape case in the midst of accusations that he had failed to disclose pertinent evidence.

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“Nifong had claimed throughout the proceedings that he had provided the defense with all available evidence. Nifong now faces sanctions from the North Carolina state bar because he had no concern that the withheld evidence would almost shatter innocent lives.

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It wouldn't take long to scan the judicial archives of recent years and uncover many similar scenarios at both the state and federal levels.

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“The American judicial system was designed to operate in a manner that would warrant every citizen's confidence. A trend toward secrecy and deceit in our national judiciary undermines the very foundations of that confidence.

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“When I read about a case like Mr. Sipe's, I begin to wonder, how many other times has this happened, but no one found out? Is there still justice for the American citizen in the justice system?

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“What we are facing today is a loss of trust and integrity in the judicial system. Attorneys and judges strike deals behind closed doors to achieve politically expedient results; overzealous prosecutors conceal information or misstate facts to sway the ruling; judges fail to recuse themselves in cases involving their private interests; illegal immigrants are granted illegal benefits to testify against a U.S. citizen. Such blatant affronts will quickly destroy the trust of the American people in the system.

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“These examples have strong parallels in the private sector. One publicized example was the Enron corporate accounting scandal. Just like in Sipe's legal trial, the people who should have been the most trustworthy demonstrated an utter lack of integrity.

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But there is an important difference here: when Enron's executives were found out, they faced serious legal consequences, and the public was so outraged over the incident that the word "Enron" has become synonymous with corporate scandal and shady business practices.

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“Why is it that we expect integrity from the private sector, but write off these government judicial shenanigans as just being "the way government works"?

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“We, the American people, have a responsibility to hold our public servants accountable to a standard of true justice. If we fail to act or speak out when we witness the loss of integrity in our judicial system, then we are guilty too. We wouldn't tolerate a sports star cheating to gain the upper hand; we wouldn't tolerate a corporate executive cheating for personal gain; we cannot tolerate our public servants "cheating" in matters of justice because we all pay when they do.”

At a luncheon to kick of the week of celebrating prosecutorial misconduct, Defendant Nifong, with the help of the Snooze Room’s John Stevenson, attempted to portray his critics as out of touch with reality hecklers.

“District Attorney Appreciation Week" was launched Monday for embattled Durham chief prosecutor Mike Nifong, who suggested the event's organizers are more in tune with reality than countless out-of-state hecklers who criticize his handling of the controversial Duke lacrosse sex-offense case.”

"If you rely on certain media, you might think there is universal disapproval of me," Nifong said..."But if you're closer to home, you realize that's not true."

By employing the Nifong cite, former congressman Watts adds himself to the list of out of touch with reality hecklers that includes the North Carolina State Bar, the North Carolina Conference of District Attorneys, members of the NC General Assembly and the US Congress, the New York Law Journal, Larry Klayman (founder of Judicial Watch), District Attorney Josh Marquis (vice president of the National District Attorneys Association), and countless others.

Protecting Our Innocents

Dear Readers,

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With hope that you will pardon us this brief interruption in our regularly scheduled programming, we would like to bring your attention to a recent post by our dear friend Kathleen Eckelt at Forensic Talk. Time and again, over these several months shared together, many of us have, individually and collectively, turned to Kathleen to help us better understand the science relative to this discussion and to the exposure of the Hoax. As an accomplished forensic nurse and a willing teacher, Ms. Eckelt has answered these calls each time they have been made, and, many times without any of us needing to ask. Today, it is her turn to call upon us.

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Kathleen writes:

“I have a topic very close to my heart, which I need to post about today, as it now personally affects our family. I ask that everyone please read, support, respond with public comments, pass this link along to as many people as they can, and also contact their state representatives about this matter:

“With all the publicity and controversy surrounding Jessica's Law recently, the
general public may believe that our states are finally getting their act together with regards to protecting our children from sex offenders.

"Jessica's Law" refers to the Jessica Lunsford Act passed in Florida which mandates a minimum sentence of 25 years and a maximum of life in prison for first-time child sex offenders. All across the country, states, counties, and individual communities are banding together to impose more severe restrictions on the movements and actions of sex offenders, such as California's Proposition 83.

“Many communities are now instituting restrictions on how close a registered offender can live to schools, parks, and day care centers. They are telling the offenders, in a clear loud voice, We don't want you in our neighborhoods!

“And this is good. I believe paroled offenders' movements and actions should be closely monitored for the rest of their lives. Unfortunately, as my family and I found out last week, these laws don't go far enough to protect our children from the very offenders who perpetrate 90-95% of all child sex abuse cases.”

“Our daughter was informed last week that a registered child sex offender (her ex's uncle) was living at the same residence where her children were visiting their father on week ends. He is on parole for a 2nd degree child sex abuse offense.”

If time allows, please visit Ms. Eckelt’s Forensic talk to read the balance of her post: click here.
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Please know that we are quite grateful for any assistance or encouragement you might offer Ms. Eckelt.

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Thank you,

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Your friends at LieStoppers

The Dog Ate My Homework

Flashback:

"District Attorney Mike Nifong's attorney says he will not ask for an extension to file a response to the ethics charges against him." WTVD February 9, 2007

"I'm looking forward to having the case heard and having the opportunity to have my side told publicly." Defendant Nifong February 9, 2007

Today:

Order for Extension of Time NC State Bar February 21, 2007

Reality, Experimentation, and Consequences

Addressing recent allegations that a Duke student was raped at an off-campus party last Sunday, Duke VP for Student Affairs, Larry Moneta appears to downplay the alleged crime as not being indicative of the atmosphere at Duke, but rather symptomatic of the realities of life and a normal result of experimentation. In an interview with Carolyn Costello of NBC-17, Moneta, incredibly, also appears to shift blame to the alleged victim for being in the wrong place at the wrong time.

"It's part of the reality of collegiate life and of experimentation and some of the consequences of students not necessarily always being in the right place at the right time."

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“This happens around the country. Duke is no different in that respect.”

Moneta’s latest comments appear to echo, in part, the sentiments he expressed when addressing the issues of acquaintance rape in a 2005 interview with Duke Magazine’s Bridget Booher for her article entitled “Hooking Up”, a supplement to her feature, “The Silent Epidemic, Sexual Assault on Campus”.

"Part of the problem is who is defining social norms," says Larry Moneta, vice president for student affairs. "TV shows and popular music celebrate drugs, drinking, and casual sex. Students seem to want an accelerated approach to relationships so that it becomes almost utilitarian."

While many details remain unclear on the circumstances of the latest allegations, Moneta’s comments do appear to indicate that the priority for Duke’s administration may again be public relations when addressing the latest scandal. In his interview with Costello, Moneta seems to affirm that supposition by making efforts to distance the current accusations from those that fueled the Hoax.

"People of intelligence, thoughtful people, will understand the dramatic difference here, but will hold us accountable and look to our response."

While Moneta does not clarify, for those of us lacking the required intelligence, what the apparently self-evident "dramatic difference" is, it is likely that the second half of his statement will prove true. We strongly suspect, or at least hope, that he will be held accountable for his response blaming reality, experimentation, and consequences of poor decisions.

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Although Moneta did not note the differences for NBC-17’s viewers, Durham City Councilman Eugene Brown was more helpful. “It’s a different case and a different neighborhood,” he told Costello. A review of Brown’s initial take on the Hoax may help to decipher his comments:

"It's this preppy arrogance that they will never be held accountable for what they've done -- that their daddies will get them out of it," said Eugene Brown, a Durham city councilman who lives on Buchanan Boulevard, a block from the rental house.

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"To use an old phrase, they saw themselves as being cool cats, and they used my neighborhood as their sandbox."

In an article in yesterday’s News & Observer , Anne Blythe points out another dramatic difference between the two cases: District Attorney Mike Nifong has not usurped the case from the Durham Police Department, despite the steady flow of news coverage it has seen over past few days.

“As news of the reported rape spread through the blogosphere Monday, many people questioned whether District Attorney Mike Nifong would show the same interest in the investigation as he did the Duke lacrosse case.”

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"We haven't made any arrests or anything yet," said Maj. L.A. Russ of the Durham Police Department. "He would not get involved this early."

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“But in the lacrosse case, Nifong assumed control of the investigation, according to police reports, before any charges were filed.”

DA Nifong, whose taking over the investigation coincided with the News & Observer’s infamous “Dancer gives details of ordeal” article, which was the first major media report to hype the race of the Hoax accuser and accused, explained his pre-arrest intervention at the time by pointing to the importance of the case to the community. On the day of his initial briefing on the case by police, Nifong made his first of many public comments:

“Every rape is a serious case,” Nifong told the Herald Sun. “But some speak to the community in a different manner. This is one of them.”

"The information that I have does lead me to conclude that a rape did occur," Nifong said. "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."

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"This is a case we felt we needed a quick turnaround," Nifong said. "There's a lot up in the air, and 40-some people waiting on this."

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"Nifong, who said Monday that he himself will prosecute the case, said authorities may apply for more search warrants in the case and that more charges for aiding and abetting may be possible against partygoers.

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"There's a good chance if someone had spoken up and said, 'You can't do this,' it might not have happened," Nifong said. March 27, 2006 WRAL

While the differences in neighborhood and Nifong’s interest noted by Brown and Blythe are telling, Moneta’s seeming attempt to downplay the accusation is relatively similar in that regard to his initial reaction to the Hoax accusation.

“Brodhead found out March 20, when Vice President Larry Moneta told him "the
accusations were not credible and were unlikely to amount to anything."

The News & Observer, while apparently this time finding the race of the alleged victim and wanted suspect not newsworthy, also appears to find the two cases quite similar. So similar, in fact, that, they have chosen to list their stories on the new accusations under their Duke Lacrosse index. It’s impossible to imagine that listing subsequent accusations of unrelated sexual assaults alongside the exhaustive saga of the Hoax will not result in additional unwarranted smearing of the Hoax victims by further painting their names and faces with the stigma of accusations of sexual assault. It is our hope that the N&O will reconsider their decision to attach the latest accusations to the Hoax defendants in this manner, as they subsequently regretted their decision to print the names and faces of 46 Duke lacrosse players in the front section of their Sunday, April 2, edition.

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The parallels and contradictions to be found in the two cases are, indeed, striking. Perhaps it is inevitable that comparisons will be made. Certainly, the most obvious contradiction in the cases is that the race of the accuser and the accused in the new accusation is the reverse of the Hoax. One can only hope, however, that this is not the difference described as "dramatic" by Moneta and implied as an issue of "neighborhood" by Brown.

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Sadly, it seems that Moneta and Brown will not be the only commentators to appear to make these comparisons based, not on an objective view of the circumstances or with a hope that some of the differences are the result of lessons learned over the past eleven months, but rather with the same tainted views with which they have measured the Hoax. Some, who were so quick to pronounce the lacrosse players guilty, will undoubtedly now point to the difference in response time by the media and the police, as an indication that news organizations and the justice system works faster when the victim is white and the suspect black. Signs of this inevitability are already evident in comments posted on this blog and on other forums.

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A commentator at Court TV suggested:

“…by the alacrity of the police intervention in the case and promised arrest in a matter of less than a day, you can tell that there is a DIFFERENCE being made when the accused is a black male compared to how long it took the DPD to mosey over to the LAX house in the prior case....48 hours! They were on the scene at THIS house in under 3-4 hours,tops! As I predicted, the race of the victim determined the swiftness of the police response! Also,the race of the suspect is influencing the prediction of an arrest in 24-48 hours.....quite a difference from how long it took the LAX players to be charged and arrested as we all know!”

A regular reader here added:

“a white girl was raped at a duke party this weekend and the police were there in minutes of being called and they are going to arrest the suspect in the next 24 hours and he is black; that is totally different from the way the lax team was treated. they were not interviewed about a rape/sexual assault until 48 hours later despite the victim being in police custody immediately after the party and the police could have come back that night and investigated the scene but no, the victim was poor and black and they did not care about investigating. The white girl charged rape and the police were there within seconds and taking people in for questioning.”

Those of us who have become disenchanted with the media and the unique system of Durham justice, will likewise note the disparate treatment of the lacrosse team and the members of the self-proclaimed “Infamous” Alpha Alpha Chi Chapter of the Phi Beta Sigma Fraternity, who reportedly hosted the party where the latest alleged assault is claimed to have occurred. When Duke University President Dick Brodhead fails to issue a statement along the lines of “whatever they’ve done is bad enough” or decrying the “highly unacceptable behavior” (or "experimentation" as Moneta prefers) of the party goers, some may not see this as a sign of lessons learned, but rather a clear double standard.

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When Sam Hummell, or the like, fails to produce false facts sheets or a vigilante wanted poster, will we quietly take notice of his new found reluctance to smear individuals in order to advance his agenda, or will we point out the hypocrisy of his eagerness then versus his hesitation now?

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When the News & Observer fails to hype the “dramatic” and “neighborhood” differences, will we note it as an indication that there’s no profit in selling a story devoid of salacious racial details if the involved races are reversed, or will we believe that they have learned from their mistakes of last spring?

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When no Group of 88 labels this instance a Social Disaster and no Castrate! banner appears in front of this party house, will we recognize this as a sign of progress made, or as an indication that, absent rich white young men as the accused, such actions hold no appeal for the Holloways and the potbangers?

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When District Attorney Nifong fails to hijack the case and say, “I’m not going to allow the world’s view of Durham to be a place where a black student from another school can rape a white Duke student,” will we be thankful that neither the alleged victim nor the suspect will be Nifonged? Will we breathe a sigh of relief that the Durham police will be allowed to conduct a full and thorough investigation devoid of manipulation? Or, will we note that it must mean there is no election looming and political danger, rather than benefit, lies in race baiting in the opposite direction?

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While we have no answers to these questions, we will continue to hope that any differences in response or reaction by the University, the media, Durham police investigators, commentators, and even Defendant Nifong are, at least in part, the result of lessons learned, rather than pervasive double standards.

Lady Justice is a two-faced kind of friend

In Durham...Lady Justice is a two-faced kind of friend.
If you ever get in trouble, there is NO "consistent" trend.
The way the folks in power treat you...can significantly change
From one case to another...quite a shocking range!
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Today Mr. Whitey Bennett and Ronnie Garrett are relieved
Their murder charges tossed away...witness just can't be believed!
Yes, the ADA must walk away, Mr. Ennis's credibility's reviled
He's told too many stories to take the case to trial!!
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Yes, he told too many stories...Mitchell Garrell can't proceed
Yet Crystal's 15 versions get treated like religious creed.
Crystal changes names, and circumstance, she even changes crimes
But, the Lacrosse case is" different," so different THIS ONE TIME.
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There's now another incident, another party, an accusation!
But Durham sure is "different" as they approach this "unsavory" situation!
Are the Wanted Posters going up, ... the frat boys' faces on each pole?
Demanding information! My God! "We Know you Know!"
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Has the N&O talked to neighbors offering hostile information?
Did these frat boys ever "swagger" or indulge in public urination?
Will there be sweet stories on this "victim"...where Samiha fawns?
Will the world soon know the dimensions of this attacker's daddy's lawn?
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Has the Rev. Jesse Jackson booked a fancy suite in a motel?
Will he pay this girl's tuition, ensure her scholarship as well?
Will there be a "Listening Statement"...The 88's empathy marching on?
Are those "Castrating" Potbangers shining up the Calphalon?
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Will the City Council scourge the boys...remember Eugene Brown?
Will he call the frat boys "cool cats," who make a "sandbox "of his town?
Will he insult THEIR daddies too, or this time withhold blame?
Time will tell if Mr. Brown treats ALL these boys the same!
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And where is Mr. Nifong...will he be making media tours?
Will he be saying now with CERTAINTY, "Yes sir, a brutal rape occurred."
Drugs and guns, an accusation,...surely Nifong will opine!
Isn't Durham's reputation once more on the line?
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So, surely, Mr. Nifong will step in and save the day!
And once more will proclaim himself - the all powerful "Inspector D.A.!!"
While Moneta clucks to us...the naive must understand the deal...
"Experimentation!" "Reality"...(ho-hum) the "consequence" is real.
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Someone check the zip code! What's behind this transformation?
Perhaps alien Body Snatchers overtook the Durham population?
Everything they do reminds us of the travesty last time.
The Lacrosse case was SO different......and therein lies the crime.

Joan Foster

Sgt. James Regan

Sgt. James Regan

Army Ranger - Duke Lacrosse

1980-2007

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The Ranger Creed

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Recognizing that I volunteered as a Ranger, fully knowing the hazards of my chosen profession, I will always endeavor to uphold the prestige, honor, and high esprit de corps of my Ranger Regiment.

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Acknowledging the fact that a Ranger is a more elite soldier who arrives at the cutting edge of battle by land, sea, or air, I accept the fact that as a Ranger my country expects me to move farther, faster and fight harder than any other soldier.

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Never shall I fail my comrades. I will always keep myself mentally alert, physically strong and morally straight and I will shoulder more than my share of the task whatever it may be. One-hundred-percent and then some.

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Gallantly will I show the world that I am a specially selected and well-trained soldier. My courtesy to superior officers, neatness of dress and care of equipment shall set the example for others to follow.

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Energetically will I meet the enemies of my country. I shall defeat them on the field of battle for I am better trained and will fight with all my might. Surrender is not a Ranger word. I will never leave a fallen comrade to fall into the hands of the enemy and under no circumstances will I ever embarrass my country.

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Readily will I display the intestinal fortitude required to fight on to the Ranger objective and complete the mission though I be the lone survivor.

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Rangers Lead The Way!

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Here's a Duke lacrosse player you need to know about (Mike Lopresti, Indianapolis Star):

Jimmy Regan went from his Long Island roots to Duke as a determined athlete and student.

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"Just a terrific personality. Always a smile on his face. His teammates just loved to be around him," his coach, Mike Pressler, said over the phone Monday. "He was the kind of kid that every coach in America would be proud to call his own. I can't imagine a better teammate or a better friend."

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By the spring of 2002, Regan was a senior and close to graduating with a degree in economics. He was on the all-Atlantic Coast Conference academic team as a midfielder. In the conference championship game, against No. 1 Virginia, he scored four goals and the Blue Devils won 14-13. Pressler still remembers how the media flocked around him afterward. How happy Regan was. The star of the game. The hero.

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"It was just his day in the sun," Pressler said. "I'm sure it was something he never forgot."

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Regan had a scholarship to go to law school after Duke. Also an offer to work at a financial company. "But he felt like he had a higher calling," Pressler said.

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Regan joined the Army Rangers. Later, he figured, he'd come back to his life. One day, he would coach a lacrosse team, and help kids find the happiness he had that spring day against Virginia. So he left Duke behind, just as the class of 2006 -- when the world caved in the Blue Devils lacrosse team -- was entering.

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Somewhere in Iraq last week, Sgt. James John Regan was killed in action. No other details.

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He had served double tours in both Iraq and Afghanistan, returning to harm's way again and again and again. He had been awarded a Bronze Star, a Purple Heart, other medals. He was 26 years old.

L.I. mourns son killed in fourth tour (Richard Weir and Jordan Lite, New York Daily News):

American flags lined an exclusive Manhasset, L.I., street for at least a mile and a half yesterday in honor of a hometown Army Ranger who became the third graduate of his high school to die in Iraq.

Sgt. James Regan, 26, died Friday when a roadside bomb hit the Stryker tactical vehicle he was riding in while on combat patrol in the town of Baqubah, said military spokesman Bruce Hill.

Fiercely competitive and laser-like in his intensity, Regan had rejected a career in law or finance in favor of the Army.

"If I don't do this, who will?" Regan told his fiancée, medical student Mary McHugh, of his decision to enlist.

"He was blessed with talents and intelligence. To be of service to his country ... he wanted to do this more than anything," Regan's family said in a statement.

Profoundly affected by the 9/11 attacks that killed a dozen neighbors, Regan turned down a job at financial-services firm UBS and put off a scholarship to Southern Methodist University Law School to join the Army.

He turned down Officers Training School, saying it would slow his ability to join the Rangers. There, he became highly decorated in his four tours - two in Iraq and two in Afghanistan - earning a purple heart and bronze star, among others.

He planned to marry McHugh after completing his service next February and to teach.

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Regan is survived by his parents, three sisters and his fiancée. He will be buried with full military honors in Arlington National Cemetery. Funeral arrangements are pending.

Widdle Mikey Nifong

Widdle Mikey Nifong was pouting to the press!

Please withhold your judgment...there's things I must express!

Please withhold your judgment till the evidence is in!

After all, it's ME this time...so different when it's THEM.

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Widdle Mikey Nifong peeks from behind his lawyer's skirt.

Don't pre-judge or criticize me..my widdle feelings will get hurt!

Widdle Mikey Nifong's crying in his sippy cup,

Hm-m-m? Who once said that the Innocent NEVER lawyer up?

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Widdle Mikey Nifong used to like the media game

The "hooligans were GUILTY," Mikey was happy to place blame.

But now, our widdle Mikey wants his own "good name" preserved.

Do as I SAY, not as I DO (Widdle Mikey sure has nerve.)

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I wonder how he feels at night when he tries to channel surf

And sees his name and reputation scorned and sullied in the dirt?

I wonder...does he ever think...how Fate often pulls a switch...

And what goes around, comes around...and payback is a bitch!

Joan Foster

Huh?

Defendant Nifong responding to charges filed against him by the State Bar and Beth Brewer:

"I wish everyone would withhold judgment until they hear the evidence, as well as my response," he [Nifong] told WRAL.

Defendant Nifong responding to charges against the Hoax victims one day after his first briefing from Durham Police:

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

Not that it matters, but was Nifong speaking of "my response" that resulted in additional charges of dishonesty from the State Bar or has he invented a new one?

§7A-66 Affidavit Filed

Durham resident, Beth Brewer, has filed a civil affidavit with Archie Smith, Clerk of Superior Court in Durham County, charging Durham County District Attorney, Mike Nifong, with willful misconduct and conduct prejudicial to the administration of justice that brings the office into disrepute. Mrs. Brewer’s affidavit, filed in accordance with the provisions set forth in NC General Statute §7A-66, requests that the Court remove Mr. Nifong from office.

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The following press release announced Mrs. Brewer's action:

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Durham resident files affidavit asking the Court to remove District Attorney Mike Nifong from office

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FOR IMMEDIATE RELEASE:
Contact: Beth Brewer - bbrewer@liestoppers.com

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Durham, NC (February 9, 2007) — On Friday*, Durham County NC resident, Elizabeth Brewer, filed a sworn affidavit with the Clerk of Superior Court in Durham County requesting the Court remove District Attorney Mike Nifong from office.

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Under the provisions set forth in NC General Statute §7A-66, Removal of district attorneys, Ms. Brewer’s affidavit charges Mr. Nifong with §7A-66(2) Willful misconduct in office and §7A-66(6) Conduct prejudicial to the administration of justice which brings the office into disrepute. Either of the charges, if found to be true, are grounds for removal under the statute. In her affidavit Ms. Brewer cites many of the same charges recently brought against Mr. Nifong by the NC State Bar.

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Ms. Brewer has been a resident of Durham County for 23 years and has no connection to Duke University or the defendants in the Duke lacrosse case. She was the Chair of the political action committee Recall Nifong – Vote Cheek, a group that sought to defeat Mr. Nifong in last November’s election because she realized Durham could not move forward with Mr. Nifong as District Attorney. Ms. Brewer believes, “Recent revelations show further, much more serious misconduct including statements made by Mr. Nifong in Court in knowing contradiction of the truth. There can be no faith in our justice system with a district attorney who, in a very public case, conspires to withhold exculpatory evidence from the defense and repeatedly makes misrepresentations and false statements to the Court and opposing counsel about the matter.”

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According NCGS §7A-66, once an affidavit is filed, the clerk of superior court will immediately bring the matter to the attention of the senior resident superior court judge for Durham County, Orlando Hudson. Within 30 days, Judge Hudson should either take action on the charges or refer them for review and action to another Durham County superior court judge.

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If the Court finds probable cause, believing the charges are true, Mr. Nifong could be suspended, with pay, pending a final decision in the case. If the Court finds that the charges do not constitute grounds for suspension or finds that no probable cause exists the charges could be dismissed. If the Court finds that grounds for removal exist, the Court would issue an order permanently removing Mr. Nifong from office and terminating his salary.

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“My overriding concern is that Durham County have a new district attorney as soon as possible and, not to add to the burdens of Mr. Nifong,” said Brewer.

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The Affidavit

STATE OF NORTH CAROLINA IN THE GENERAL COURT OF JUSTICE SUPERIOR COURT DIVISION

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COUNTY OF DURHAM FILE NO. 07CVS01993

IN THE MATTER OF ) AFFIDAVIT OF
DISTRICT ATTORNEY ) ELIZABETH M. BREWER
MICHAEL B. NIFONG ) N.C.G.S. 7A-66
________________________________________________________________

Now comes the undersigned, ELIZABETH M. BREWER, being first duly sworn, and deposes and says:

1. I am a resident of Durham County, North Carolina. I have no connection to Duke University or to the Defendants in the cases State v. Reade William Seligmann, 06 CR 4335-36, State v. Collin Finnerty, 06 CR 4332-33, and State v. Evans, 06 CR 5582-83 (hereinafter referred to as ‘the lacrosse case’ or ‘the/this case’). I allege the facts below, all public knowledge, on information and belief, except as to Paragraph 39, as to which I have personal knowledge.

2. Under the provisions set forth in N.C.G.S. § 7A-66, Removal of District Attorneys, I am requesting the removal of Michael B. Nifong from the office of Durham County District Attorney on the grounds stated and shown herein below.

3. District Attorney Nifong has committed willful misconduct in office, which is grounds for removal from office under N.C.G.S. § 7A-66(2).

4. District Attorney Nifong has engaged in conduct prejudicial to the administration of justice which brings the office into disrepute, which is grounds for removal from office under N.C.G.S. § 7A-66(6).

5. Specifically, DA Nifong has engaged in the following conduct, which clearly constitutes willful misconduct in office and conduct prejudicial to the administration of justice which brings the office into disrepute.

DA Nifong conspired to withhold exculpatory evidence from the defense and repeatedly misrepresented and made false statements to the Court about the matter.

6. In an April 10, 2006 meeting, DA Nifong conspired with the Director of DNA Security, Inc., Dr. Brian Meehan, and Durham Police Officers, Mark Gottlieb and Benjamin Himan, to withhold exculpatory evidence from the defendants in the lacrosse case.

(Attachment 1 – December 15, 2006 Court transcript excerpt, Paragraphs 33 - 41)

7. In the April 10, 2006 meeting, DA Nifong and the Durham Police Officers were informed that testing performed by Dr. Meehan’s laboratory revealed the presence of DNA from multiple male sources on the rectal swabs and panties from the rape kit; none of the referenced DNA matched any of the lacrosse players, including the defendants.

(Attachment 1 – December 15, 2006 Court transcript excerpt, Paragraphs 33 - 41)

8. DA Nifong willfully determined in concert with Dr. Meehan that Dr. Meehan should produce a report that excluded the referenced exculpatory DNA evidence.

(Attachment 1 – December 15, 2006 Court transcript excerpt, Paragraphs 62 - 71)

9. Knowing that the data contained exculpatory evidence, DA Nifong nevertheless argued in Court on September 22, 2006 to withhold the underlying DNA test data from the defendants -- data which subsequently led to the discovery of the referenced exculpatory evidence. The Court disagreed and ordered that the underlying DNA test data be produced by October 20, 2006.

(Attachment 5 – Motion to Compel Discovery: Expert D.N.A. Analysis, Page 65, Paragraph 45 and Attachment 3 – January 24, 2007 Amended North Carolina State Bar Complaint – Paragraphs 245 – 251)

10. Over eighteen hundred pages of underlying DNA test data were provided to the defense at a court hearing on October 27, 2006. Defendants had to review these hundreds of pages of technical data to discover the exculpatory DNA evidence that had been intentionally withheld from DNA Security Inc.’s final (and only) report provided previously in discovery.

(Attachment 1 – December 15, 2006 Court transcript excerpt, Paragraphs 66 - 67)

11. The State’s evidence provided previously in discovery did not include notes or a report on this topic from either of the Durham Police officers who were present when DNA evidence was discussed at the April 10, 2006 meeting with DNA Security, Inc.

12. At a May 18, 2006 court hearing, in response to a question from Judge Stephens regarding his compliance with discovery, DA Nifong told the Court “I’ve turned over everything I have.” This statement was made by DA Nifong with the knowledge that exculpatory DNA evidence detected by DNA Security, Inc in early April, and reported to DA Nifong on April 10, 2006, was not included in discovery.

(Attachment 3 – January 24, 2007 Amended North Carolina State Bar Complaint – Paragraphs 234 - 235)

13. Included in discovery materials turned over the defense on May 18, 2006, DA Nifong provided the following response, “The State is not aware of any additional material or information that may be exculpatory in nature with respect to the Defendant.” At the time he provided these responses, DA Nifong was aware of exculpatory DNA evidence that had not been provided to the defendants.

(Attachment 3 – January 24, 2007 Amended North Carolina State Bar Complaint – Paragraphs 230 - 231)

14. DA Nifong told the Court on December 15, 2006, “The first I heard of this particular situation was when I was served with these reports – this motion on Wednesday of this week.” This statement, by Nifong, was made in response to a defense attorney’s summary of the Motion to Compel Discovery: Expert D.N.A. Analysis (DNA Motion) filed with the Court on Wednesday December 13, 2006.

(Attachment 1 – December 15, 2006 Court transcript excerpt – Paragraph 5)

15. The main focus of the DNA Motion was the content of a report turned over by the State in discovery. The report, produced by DNA Security, Inc., a private laboratory hired by the State, did not fully disclose the results of DNA testing performed by their laboratory. Specifically, the report did not disclose the presence of DNA from multiple males, found on and in the accuser, that definitively excluded each of the defendants and all other members of the Duke lacrosse team.

(Attachment 1 – December 15, 2006 Court transcript excerpt – Paragraph 5)

16. According to testimony of State’s witness, Dr. Brian Meehan, DA Nifong was made aware of this exculpatory DNA in a meeting on April 10, 2006. DA Nifong has, therefore, known “of this particular situation” since early April, 2006.

(Attachment 1 – December 15, 2006 Court transcript excerpt – Paragraphs 33 - 41)

DA Nifong instructed Durham Police investigators to conduct a photographic identification session that violated their own procedures as well as the recommendations of the North Carolina Actual Innocence Commission.

17. On March 31, 2006, DA Nifong, who had taken over the supervision of the investigation on March 24, 2006, met with Durham Police Officers and directed a new photographic identification procedure to be used in this case.

(Attachment 6 – December 14, 2006 Motion to Suppress Alleged “Identification” of the Defendants by the Accuser – Page 71)

18. DA Nifong ordered this photo identification session despite the fact that the accuser had been unable to identify any of her alleged attackers in two previous photo identification sessions. The two prior photo arrays shown to the accuser included approximately 36 of the lacrosse team members, including two of the defendants.

(Attachment 6 – December 14, 2006 Motion to Suppress Alleged “Identification” of the Defendants by the Accuser – Page 71)

19. The new procedure, specified by DA Nifong, not only violated the Defendants’ constitutional rights, but also violated General Order 4077 of the Durham Police Department concerning photographic identifications and was contrary to the recommendations made by the North Carolina Actual Innocence Commission. In the new procedure, DA Nifong directed that photographs of all white players who attended the March 13, 2006 party be shown. No other photographs were included despite the fact that investigators knew at least two of the people present at the party were not lacrosse players. No ‘filler’ photographs were included. Prior to showing the accuser the photographs, she was informed that she would only be shown photographs of people who attended the party.

(Attachment 6 – December 14, 2006 Motion to Suppress Alleged “Identification” of the Defendants by the Accuser – Pages 71 - 72)

DA Nifong failed to pursue and secure exculpatory evidence.

20. On March 24, 2006, Durham Police investigators in the lacrosse case were instructed to report to DA Nifong placing DA Nifong in a position of authority over the investigation.

(Attachment 6 – December 14, 2006 Motion to Suppress Alleged “Identification” of the Defendants by the Accuser – Page 71)

21. In a motion filed April 28, 2006, attorneys for defendant Reade Seligmann requested, “all law enforcement officers, employees, agents, and attorneys involved in the investigation of the [case] to preserve and retain any and all …tape recordings. made during the investigation of this matter, which reflect or contain communications with or investigative reports of potential witnesses … regardless of whether or not those notes, tapes, or compilations have been incorporated into official recordings or memoranda …”

(Attachment 2 – April 28, 2006 Motion for Preservation of Notes and Tapes)

22. On May 18, 2006, DA Nifong did not object to the request and the Court ordered the preservation of the requested notes and tapes

(Reference - Joint Omnibus Motion to Compel Discovery filed August 31, 2006)

23. At a September 22, 2006 hearing DA Nifong informed the Court that tapes containing the Durham Police Department radio transmissions from the evening of the alleged attack had been destroyed. DA Nifong told the Court that the destruction of this data was in compliance with Durham Police Department tape use policy that provides for non-evidentiary tapes to be destroyed after 60 days.

(Reference - Joint Omnibus Motion to Compel Discovery filed August 31, 2006)

24. DA Nifong, with leadership authority over the investigation, had a general duty to preserve and produce all evidence in this case, and had received the defendant’s specific request concerning these tapes on April 28, 2006 and the court order on May 18, 2006. Nonetheless he allowed the transmission evidence to be destroyed.

25. DA Nifong failed to interview, or have investigators interview, the accuser for over eight months to follow up on her own conflicting statements or multiple other conflicting witness’ statements.

(Attachment 7 – January 11, 2007 Supplement to Motion to Suppress the Alleged “Identification” - Page 74)

26. Discovery turned over by the State and defense evidence indicates significant contradictions to the accuser’s April 4, 2006 photo identification statements and April 6, 2006 written statement. The accuser was not re-interviewed by any investigator concerning these contradictions prior to indictments being sought in this case. In fact, the accuser was not re-interviewed by any investigator until December 21, 2006. Notably, the December 21, 2006 interview was the first conducted by anyone in DA Nifong’s office and the interview was conducted only after the exculpatory DNA evidence was discovered by the defense, as described above in paragraphs 6 – 13.

(Attachment 7 – January 11, 2007 Supplement to Motion to Suppress the Alleged “Identification” - Page 74)

27. DA Nifong refused to meet with defense attorneys to discuss exculpatory evidence in violation of the North Carolina State Bar Revised Rules of Professional Conduct.

(Rule 3.8 – Special Responsibilities of a Prosecutor, Comment [2])

28. Several instances of DA Nifong’s refusal to meet with defense attorneys:

"After Mr. Nifong made all his statements and we heard there were going to be indictments, we called over and tried to talk to him, and he refused to talk to us. He's refused to look at the exculpatory evidence, and when there is someone who will simply not act professionally and discuss things with you in a professional way, how else do you do things?’ Cheshire said.”

(Raleigh News and Observer - May 16, 2006)

“On April 13, Nifong met with three defense lawyers, Bill Thomas, Butch Williams and Wade Smith. According to Williams, when the lawyers got into exculpatory evidence, like the photos, Nifong essentially cut them off, saying that he knew much more about the case than they would ever know, and that he intended to indict two players.

On April 18, when the two players were arrested and charged with rape and kidnapping and more vaguely defined sexual offenses, Seligmann's lawyer, Kirk Osborn, went to Nifong's office to try to speak to him. ‘I thought, surely he'll talk to me,’ said Osborn, who has known Nifong for 25 years. But after Osborn had waited for 20 minutes, Nifong's assistant emerged with a message, according to Osborn: ‘Mr. Nifong says that he saw you on TV declaring your client totally innocent, so what is there to talk about?’ "

(Newsweek Magazine – May 1, 2006 issue)

DA Nifong’s conduct violated the North Carolina State Bar Revised Rules of Professional Conduct and has been generally unprofessional.

29. The North Carolina State Bar Grievance Committee found that “Nifong made extrajudicial statements he knew or reasonably should have known would be disseminated by means of public communication and would have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter in violation of Rule 3.6(a); made extrajudicial statements that had a substantial likelihood of heightening public condemnation of the accused in violation of Rule 3.8(f); and engaged in conduct prejudicial to the administration of justice in violation of Rule 8.4(d) of the Revised Rules of Professional Conduct.”

(Attachment 3 – January 24, 2007 Amended North Carolina State Bar Complaint – Page 39(a))

30. A few of DA Nifong’s extrajudicial statements to support the above paragraph include:

“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.”

(NBC 17 News – March 27, 2006)

"This is not a case of people drinking and it getting out of hand from that. This is something much, much beyond that."

(NBC 17 News – March 28, 2006)

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

(NBC 17 News – March 29, 2006)

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

(MSNBC – March 29, 2006)

“There’s no doubt a sexual assault took place.”

(CBS News – March 30, 2006)

“There was a feeling that Duke students' daddies could buy them expensive lawyers and that they knew the right people. It's discouraging when people feel that way, and we try not to make that the case.”

(USA Today – March 30, 2006)

“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?”

(N&O – April 10, 2006)

"The reason that I took this case is because this case says something about Durham that I’m not going to let be said," said Nifong. "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."

(WRAL – April 13, 2006, quote from a forum the previous Wednesday)

31. The North Carolina State Bar Grievance Committee found that, “By making statements to representatives of the news media …Nifong engaged in conduct involving dishonesty, fraud, deceit or misrepresentation in violation of Rule 8.4(c) of the Revised Rules of Professional Conduct.”

(Attachment 3 – January 24, 2007 Amended North Carolina State Bar Complaint – Page 40(b))

32. DA Nifong told media representatives (WRAL) on March 29, 2006, “My reading of the report of the emergency room nurse would indicate that some type of sexual assault did in fact take place."

33. The accuser “told the S.A.N.E nurse in training that she was not choked; that no condoms, fingers or foreign objects were used during the alleged sexual assault.”

(Attachment 4 – June 8, 2006 Amendment to Motion to Suppress Non-Testimonial Photographs/Affidavit of Counsel – Page 50 – 51 (2))

34. Subsequent to DA Nifong’s March 29, 2006 statement (referenced in paragraph 32), DA Nifong made the following statements to media representatives:

"I would not be surprised if condoms were used," Nifong said in an interview last month. "Probably an exotic dancer would not be your first choice for unprotected sex."

(Charlotte Observer – April 11, 2006)

“If a condom were used, then we might expect that there would not be any DNA evidence recovered from say a vaginal swab.”

(MSNBC – March 31, 2006)

35. Nifong’s ongoing media commentary on the case raised racial tensions in the community and heightened public condemnation of the accused. He further raised tensions by directing an appeal to the public for information already known and with his comments about evidence he knew did not exist. The North Carolina State Bar Grievance Committee sums up this pattern of misconduct as “constitut[ing] a systematic abuse of prosecutorial discretion in the underlying criminal cases, Nifong engaged in conduct prejudicial to the administration of justice . . .”

(Attachment 3 – January 24, 2007 Amended North Carolina State Bar Complaint – Page 42, Paragraph (i))

36. DA Nifong threatened to discontinue his office’s representation on the Animal Control board because other board members signed a petition in support of adding Lewis Cheek to the ballot as a candidate for district attorney in the upcoming election.

37. In a July 28 e-mail message to his fellow board members, Nifong wrote that he "was truly dismayed at the number of my fellow board members who signed the Lewis Cheek [petition].

"Since it is apparent that many of you do not have confidence in me, I intend to reassess the position of my office with respect to representation on the board and to inform you of my decision about whether we will continue to participate within the next two weeks," Nifong wrote.
"Animal control is a very important issue in Durham, and it is crucial that the [committee] be comprised of people who can work together in an atmosphere of mutual respect and trust," Nifong wrote.”

(Raleigh News and Observer – August 1, 2006)

38. “AN EYE ON HIS ENEMIES: As for the hard-fought campaign, Durham’s district attorney told an interviewer he had learned some things. “I don’t know if I’ve learned who my friends are, but I have learned who my friends aren’t,” Nifong said. “Which in some ways is more valuable.”

(Raleigh News and Observer – November 11, 2006)

39. At the September 22, 2006 hearing I approached Mr. Nifong in the hallway of the courthouse to ask a question unrelated to the lacrosse case. I began by introducing myself, since we had not had occasion to meet previously, and was interrupted by Mr. Nifong who stated, “I know who you are.” When I read the article referenced in paragraph 38 above, I personally felt this as a veiled threat – particularly since I had put myself in a position of publicly opposing Mr. Nifong in the November election.

DA Nifong does not “demonstrate respect for the legal system and those who serve it.” (NC Bar Rules of Professional Conduct Preamble: A Lawyer’s Responsibilities – Paragraph 5).

40. DA Nifong’s comments to and treatment of other attorneys that he has faced in this and other cases is unprofessional, disrespectful and, at times, vulgar and would not be tolerated in most business settings.

41. After lawyer Kirk Osborn asked a judge to remove Nifong from the case, Nifong said, "If I were him, I wouldn't want to be trying the case against me either”… Nifong said he was having trouble absorbing all that was filed: “I just don’t have as much time for reading fiction right now.”

(Raleigh News and Observer – May 2, 2006)

42. “The best comment I ever heard about Kirk was he was the best-dressed public defender in North Carolina."

(Raleigh News and Observer – October 1, 2006)

43. At one court hearing, Nifong suggested that attorneys for unindicted team members had put their careers ahead of their clients:

[Nifong said] “It looked 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 a part of this spectacle. . . .

The tensions between Nifong and the defense boiled over May 15, a Monday, the day Evans was indicted.

Late on the previous Friday -- after Nifong had left town for the weekend -- defense attorneys called a news conference to denounce a second batch of DNA tests that the prosecutor had ordered [and had just been provided to the defense]. The lawyers said Nifong was persecuting innocents on the word of a liar.

That Monday, Nifong stormed out of his office, blowing past the reporters in the hallway. He marched to the judges' chambers, where he bumped into one of Evans' attorneys. He lit into the lawyer [Kerry Sutton], his voice carrying across the sixth floor. He made liberal use of profanity, including the word ‘mother[expletive].’"

(Raleigh News and Observer – October 1, 2006)

44. At a July 17, 2006 hearing, Nifong unprofessionally and preposterously stated in court, “It looked 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 a part of this spectacle.” (HeraldSun – July 18, 2006)

45. DA Nifong told the Court in a September 22, 2006 hearing that, contrary to what was being reported, he had checked his calendar and had given only 15-20 media interviews related to this case. (Raleigh News and Observer – September 23, 2006)

46. This statement contradicted not only media archives but also DA Nifong’s own words as reported in the Raleigh News and Observer on June 15, 2006, “After an escort service dancer said three men raped her at a lacrosse party, Nifong talked frequently with national and local reporters - 50 to 70 interviews consuming 40 hours of his time, Nifong estimated.”

DA Nifong brought his office into disrepute and raised public concern about the whole of North Carolina’s justice system.

47. DA Nifong’s actions have caused State Representatives to discuss changes to North Carolina law and the authority of the State Attorney General to prevent prosecutorial abuse.

“LAROQUE: What I'm proposing is that we allow the state's attorney general, who is elected by all eight million people in North Carolina, to be able to investigate and, if necessary, criminally prosecute DAs that behave in this type manner.” Fox News - December 27, 2006.

48. DA Nifong’s actions in this case have resulted in letters and calls requesting an investigation by the United States Department of Justice.

“GOP Rep. Walter Jones wants the U.S. Department of Justice to investigate whether the district attorney prosecuting three Duke lacrosse players charged with rape has violated their civil rights.” Fox News - December 12, 2006.

49. DA Nifong’s actions in this case have resulted in hundreds of letters asking the Governor and NC Attorney General to intervene.

“Outrage and frustration about how the Duke Lacrosse case is coming forward in droves from ordinary citizens, who for months have been writing the state's top prosecutor urging that District Attorney Mike Nifong be removed from the case and reprimanded.

We have collected nearly 400 angry letters and emails that have been sent to Attorney General Roy Cooper. Some come from parents of duke lacrosse players, others from lawyers around the country. More still, from everyday people here in the triangle and all around the world.”

(ABC 11 News – December 27, 2006)

50. DA Nifong’s actions in this case have caused The North Carolina Conference of District Attorneys to formally request Nifong “immediately withdraw and recuse himself from the prosecution of these cases.”

(Raleigh News and Observer – December 29, 2006)

51. DA Nifong’s actions in this case have caused his name to be used as both a noun and a verb:

“Ask local prosecutors about an upcoming case and there's a good chance you'll hear a similar refrain. ’I don't want to be a Nifong.’ . . .

The phenomenon raises the question: Is Nifong's legacy going to be his name as euphemism? Nifong, n. a prosecutor who says too much to the press. . . .

On the Internet, where new phrases spread rapidly, it's already happening. "Nifonged" has come to mean "railroaded," at least according to Urban Dictionary.com. Sure that site's collection of slang definitions are user-submitted. But punch "Nifonged" into an Internet search engine. More than 40,000 hits come back.”

(Greensboro News-Record.com – January 31, 2007)

“It appears that Ben Hill, the former town manager of Fairmont, has been “Nifonged” - the verb we have coined for when someone's character is sacrificed to contrived claims.”

(The Robesonian – February 8, 2007)

52. The United States Court of Appeals for the Fifth Circuit cited DA Nifong’s behavior in a recent Court Opinion, “This is a case of a prosecution run amok. Mike Nifong, another prosecutor apparently familiar with the “win at any cost” mantra, most surely would approve. The government set out to “get” [Cuellar] for something, and why not?”

(United States of America v. Humberto Ridel Regalado Cuellar, No.05-10065)

53. Media outlets across the United States have decried DA Nifong’s actions in this case [emphasis added]:

Fox News Online September 19, 2006

Do the principles of justice still operate in American courtrooms?

The Duke Lacrosse case, in which three white male students are accused of raping a black woman last March, is also a case about race, class conflict and political ambition. For me, the case has become a litmus test for the American justice system.
…
In this case, I believe the legal system is the enemy of justice...and nakedly so.
…
The assumption that a defendant is 'innocent until proven guilty' has been reversed.
…
The stakes are high for society as well. How did a legal system based on the presumption of innocence come to this juncture?
…
The Preamble to the Bill of Rights is often omitted from renditions of that document. It reads, "The Conventions of a number of the States, having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added [the Bill of Rights]: And as extending the ground of public confidence in the Government, will best ensure the beneficent ends of its institution."

In its original intent, therefore, due process was not meant to protect an accused …from his accuser so much as to protect him from tyrannical and abusive officials. I believe both adjectives apply to Nifong from whom [the defendant] deserves constitutional protection.

Instead, a trial is likely to occur. If it does, the trial will undermine what the Preamble to the Bill of Rights declares to be the specific purpose of that document: to extend "the ground of public confidence in the Government."

As long as Nifong is the face of government, I find no reason for public confidence.
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The Kinston (NC) Freepress December 26, 2006

“I’m going to ask that Mike Nifong resign his position as district attorney, not just for the good of Durham County, but for the good of all North Carolina,” LaRoque said. “This has become a universal issue and has put North Carolina in a bad light.” Stephen LaRoque – State Representative for the 10th district

**********

News 14 Carolina January 8, 2007

“It has certainly raised concerns with respect to how we do business here in North Carolina,” said Rep. Nelson Dollar (R-Wake).

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Fox News December 18, 2006

This is not the way the system is supposed to operate. Prosecutors are supposed to be out for justice, not blood; committed to the truth, at all costs, not winning, without more.

Prosecutors aren’t just morally obliged but legally required to turn over exculpatory evidence to the defense.

Prosecutors aren’t just one side in a battle.

…

There is a reason that the rules are such. The prosecutor represents the people. The people’s goal is winning, which doesn’t have to mean a perfect conviction rate.

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.

**********

USA Today (Associated Press) December 28, 2006

I don't see how any member of the public can have confidence in this case. I think it's making a mockery of our criminal justice system to permit this guy to keep fumbling along," said Duke University law professor James Coleman, one of Nifong's leading critics. "It's either total incompetence or it's misconduct on a scale that is extraordinary."

**********

The American Daily/Phoenix Arizona January 5, 2007

"Mike Nifong has engaged in such incredible, almost Orwellian, misconduct in the Duke Lacrosse Rape Case that even feminists on the Left, who believe every allegation of rape is true and Democrats who will presumptively believe the word of any black witness against any white witness are quivering with quiet rage and also with fear. Not only is the integrity of the criminal justice system in jeopardy, but prosecution - that tool used increasingly to punish the politically incorrect or politically inconvenient - is also increasingly viewed as a mockery."

**********

MSNBC – Susan Filan January 8, 2007

“It seems a shame that this case has done so much harm to so many. It is my hope that in the end, it will come to stand for something good. It will become a reminder for all those who work in the criminal justice system that we are here to serve the greater good, never ourselves, and that our oath is to administer justice in a very careful and deliberate search for the truth.
Always. No matter what. We must never ever violate the public trust.”

**********

Mrs. Brewer was founder and chairperson of the Committee to Recall Nifong and is a member of the LieStoppers team.

*Correction: Press release originally stated, incorrectly, that the affidavit was filled on Thursday.

Duke Prof Channels Wendy Murphy

What’s that you say, Mr. Robinson?

.

Have logic and justice left and gone away? This question should be on everyone’s mind after reading Duke Law School Professor Robinson Everett’s defense of DA Nifong in the Herald-Sun yesterday.

.

Professor Everett endorsed DA Nifong in the primary and general elections. Unlike Citizen’s Committee Co-Chair Kim Brummel, who demanded Nifong apologize for his unethical conduct, Professor Everett apparently sees nothing wrong with DA Nifong’s decision to hide evidence in the Hoax. He apparently believes that Wendy Murphy understands the issues raised by Nifong’s conduct better than his fellow Duke law professor James Coleman. Everett argues that it is unclear whether “Nifong had any duty to provide the defense with evidence about the presence on the accuser’s body of semen from other persons who were not lacrosse players.” Everett cites North Carolina’s rape shield law, rule or evidence 412 and suggests that it allows a District Attorney to hide evidence he doesn’t think will ultimately be admitted at trial.

.

Everett states:

“Rule 412 contains four narrow exceptions which might allow receipt of evidence that alleged victim had sexual relations with persons other than the lacrosse players; but, after examining the rule, I doubt that those exceptions would apply in this case. Therefore, Judge Smith, who will try the case, may not allow the jury to hear this evidence – although the evidence clearly should be admissible that the tests revealed no semen from the lacrosse players on the body of the accused…I wonder whether the district attorney violated any constitutional or statutory requirement if he had the laboratory delete from its “reports of test result” those that would be inadmissible at trial but which he fears the defense might use to attack the accuser’s character.”

Rule 412 states the following:

(b) Notwithstanding any other provision of law, the sexual behavior of the complainant is irrelevant to any issue in the prosecution unless such behavior:

(1) Was between the complainant and the defendant; or

(2) Is evidence of specific instances of sexual behavior offered for the purpose of showing that the act or acts charged were not committed by the defendant; or

(3) Is evidence of a pattern of sexual behavior so distinctive and so closely resembling the defendant's version of the alleged encounter with the complainant as to tend to prove that such complainant consented to the act or acts charged or behaved in such a manner as to lead the defendant reasonably to believe that the complainant consented; or

(4) Is evidence of sexual behavior offered as the basis of expert psychological or psychiatric opinion that the complainant fantasized or invented the act or acts charged.

Let’s set aside (4) and its potential relevance for the time being. How in the present case is it even remotely possible to argue that (2) does not apply? How can anyone, let alone a distinguished professor of law, argue that multiple DNA samples found on the accuser in this case are not “evidence of specific instances of sexual behavior offered for the purpose of showing that the act or acts charged were not committed by the defendants”? Isn’t that exactly why the other DNA from at least four unidentified males is relevant? Nifong didn’t even try to argue the Robinson Everett/Wendy Murphy theory to the court, to the media, or to the NC Bar Grievance Committee. Does Professor Everett really believe the lawyer he publicly endorsed for district attorney is so incompetent that he didn’t raise an obvious argument in his own behalf and instead chose first to deny knowledge and then to make up a story about protecting the players’ privacy? Even with his career on the line, does Everett actually believe that Nifong just missed that argument or forgot his true motivations?

.

Perhaps DA Nifong’s reluctance to use Everett’s argument was due to the fact that he said repeatedly on national television and to local Durham media that he believed the accuser’s story because of the medical report from Duke Hospital, which he asserted showed vaginal trauma, and which the police described in multiple search warrants by stating, “Medical records and interviews that were obtained by a subpoena revealed the victim had signs, symptoms, and injuries consistent with being raped and sexually assaulted vaginally and anally.”

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Setting aside the fact that the medical records said no such thing and only noted diffuse edema of the vaginal walls, is Professor Everett seriously arguing that DNA found in the vaginal vault, in the rectum, and on the accuser’s underwear that doesn’t match any of the lacrosse players should be excluded from evidence because it isn’t relevant? Is he seriously arguing that DA Nifong was justified in withholding this evidence, even as his office leaked to the press the “non-exclusion” of Dave Evans from a DNA pool created from multiple plastic fingernails found in the trashcan in Evans’ bathroom? How exactly could a defendant respond to such claims in Mr. Robinson’s evidentiary neighborhood? The prosecution would assert the “injuries” were caused by the defendant, because if the defendant didn’t cause them, who did? Then the defendant would say what? Does Robinson Everett really believe a court would prevent a defendant from suggesting that the multiple donors of the recovered DNA samples may have caused the “injuries”? As controversial as rape shield laws are, does Everett really believe they operate that irrationally?

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Furthermore, the additional DNA samples in this case are highly relevant for two other important reasons. First, the accuser claimed that at least one of the accused ejaculated. The apparent justification for why no DNA was found is a magic towel that managed to wipe away all the accused’s DNA, but left the DNA of other men. How can the defense be precluded from offering the other DNA as evidence against the magic towel theory? Second, the accuser claims that she didn’t have sexual relations with anyone prior to the party and only had sex with her boyfriend a week earlier. This claim is directly relevant to the significance attached to any medical evidence of “trauma” in her vaginal area. How can DNA evidence to the contrary possibly be considered irrelevant to the question?

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Most importantly, it must be noted that Everett supports his argument by miscontsruing the rape shield law in stating, "Rule 412 contains four narrow exceptions which might allow receipt of evidence." In fact, Rule 412 contains four narrow exceptions which might allow presentation of evidence at trial and does not speak to receipt of evidence except to specifically state the opposite of what Everett falsely claims: "...all evidence relating thereto shall be open to inspection only by the parties, the complainant, their attorneys and the court and its agents."

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Further, the statute outlines the procedure by which the evidence in question must be presented to the court so that a ruling on admissibility is made by a judge and not the prosecutor.

(d) Notwithstanding any other provision of law, unless and until the court determines that evidence of sexual behavior is relevant under subdivision (b), no reference to this behavior may be made in the presence of the jury and no evidence of this behavior may be introduced at any time during the trial of:
(1) A charge of rape or a lesser included offense of rape;
(2) A charge of a sex offense or a lesser included offense of a sex offense; or
(3) An offense being tried jointly with a charge of rape or a sex offense, or with a lesser included offense of rape or a sex offense.

Before any questions pertaining to such evidence are asked of any witness, the proponent of such evidence shall first apply to the court for a determination of the relevance of the sexual behavior to which it relates. The proponent of such evidence may make application either prior to trial pursuant to G.S. 15A-952, or during the trial at the time when the proponent desires to introduce such evidence. When application is made, the court shall conduct an in camera hearing, which shall be transcribed, to consider the proponent's offer of proof and the argument of counsel, including any counsel for the complainant, to determine the extent to which such behavior is relevant. In the hearing,the proponent of the evidence shall establish the basis of admissibility of such evidence. Notwithstanding subdivision (b) of Rule 104, if the relevancy of the evidence which the proponent seeks to offer in the trial depends upon the fulfillment of a condition of fact, the court, at the in camera hearing or at a subsequent in camera hearing scheduled for that purpose, shall accept evidence on the issue of whether that condition of fact is fulfilled and shall determine that issue. If the court finds that the evidence is relevant, it shall enter an order stating that the evidence may be admitted and the nature of the questions which will be permitted.

Nowhere in Rule 412 is there a provision for allowing the prosecutor to usurp the role of the court in determining what evidence is admissible and what evidence must be provided to the defendants. It is difficult to understand how the court could rule on the admissibility of evidence hidden from it by a prosecutor. The Supreme Court of Wisconsin appears to agree with our assessment that Everett misconstrues the letter of the statute:

"The State primarily argues that the undisclosed information is not material because it would not have been admissible, as it does not meet the Pulizzano exception to the rape shield law...

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"We also disagree with the State's argument that this evidence is not material because we determine that the State's nondisclosure of this evidence sufficiently undermines our confidence in the outcome of Harris's criminal proceeding. While the State argues at length that the undisclosed evidence is not material because it does not meet the Pulizzano test, we find this argument to be unpersuasive because the State never afforded Harris the opportunity to bring a Pulizzano motion in the first place. We need not determine whether the five factor Pulizzano test would have been met in this case because even if the test would have been met, the circuit court would still have been obligated to balance Harris's right to present the evidence against the interest of the State in excluding it." State v. Harris

Robinson Everett ignores all these well-known facts and obvious questions and suggests that Nifong was justified in hiding evidence “that would be inadmissible at trial but which he fears the defense might use to attack the accuser’s character.” One wonders whether Everett is following any of the facts in this case or is instead just writing letters to the News & Observer and Herald-Sun because he assumes his intellect is so superior that the community would benefit from his baseless musings. We can only hope that justice’s version of “Joltin’ Joe” and the rest of the defense team can ultimately convince the special prosecutors to dismiss the charges in this Hoax. Until that day comes, Hoax enablers like Robinson Everett can only cause the rest of us to look to the sky and remember that “heaven holds a place for those who pray.”

FODU Statement

Friends of Duke University ran an ad in today’s Chronicle responding to an open letter issued jointly by a group of Duke University professors. The text of the statement is as follows:

Some Questions from Friends of Duke University

In a recent Duke Chronicle article, Group of 88 member Ronen Plesser maintained that the new statement of a group calling itself “Concerned Duke Faculty” would form a “basis for a conversation on campus . . . a conversation that will eventually lead to some understanding.”

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Friends of Duke University endorses this conversation. But we also believe that the basis for one aspect of this conversation—the meaning of the Group of 88’s April 6 ad—needs more clarification. In that light, we would like to offer some questions for the “Concerned Duke Faculty.”

Principles of Due Process

The April 6 ad explicitly thanked “students speaking individually” and “protestors making collective noise” for not waiting. The fundamental question is what was not worthy of being awaited. Time for reason to assist emotion? Time for evidence to be gathered and assessed? Time for a defense to be made? If you were so attuned to due process, why did you fail to mention it in your April 6 ad?

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In your recent statement, you stated “We do not endorse every demonstration that took place at the time. We appreciate the efforts of those who used the attention the incident generated to raise issues of discrimination and violence.” Do you or do you not endorse the “potbanging” protest that was widely covered in the media? Could you explain to the University community what criteria you used in the April 6 ad to determine which protests were worthy of your endorsement and which protests merited your disapproval?

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In your recent statement, you claim to “stand firmly by the principle of the presumption of innocence.” What, then, should readers of the April 6 ad have inferred from your reference to “what happened to this young woman”? Given that she had accused members of the Duke lacrosse team of rape, isn’t that the obvious inference, carrying with it implied guilt of some members of the lacrosse team?

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Do you believe that Mike Nifong acted properly when he went to the grand jury on April 17 to seek indictments against Reade Seligmann and Collin Finnerty?

Statements of Your Fellow Signatories

Do you agree with the March 31 Chronicle op-ed of your colleague and fellow signatory, Bill Chafe, who suggested that the whites who lynched Emmett Till provided an appropriate historical context through which to interpret the actions of the lacrosse players?

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Do you agree with the claim of your colleague and fellow signatory, Karla Holloway, that innocence and guilt have been “assessed through a metric of race and gender. White innocence means black guilt”? If so, which pieces of evidence cited by defenders of the players relate to race and gender?

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Your colleague and fellow signatory, Alex Rosenberg, told the New York Sun on October 27 that he signed the ad because he was bothered by “affluent kids violating the law to get exploited women to take their clothes off when they could get as much hookup as they wanted from rich and attractive Duke coeds.” Was raising this issue one of the ad’s purposes?

The University and Its Students

Will you document the methodology used to obtain a representative cross section of campus opinion for the “listening” statement?

The April 6 ad contains the following anonymous quote from an alleged Duke student: “Being a big, black man, it’s hard to walk anywhere at night, and not have a campus police car slowly drive by me.” Have any of you approached the Duke police force to ask if it has a policy of slowing down when officers see a Black man on campus? Have any of you experienced or observed this phenomenon?

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In your recent statement, you criticized those who read the April 6 ad “as rendering a judgment in the case.” That ad quoted an anonymous student, who allegedly said, “no one is really talking about how to keep the young woman herself central to this conversation”; another anonymous student allegedly said, “If something like this happens to me . . . what would be used against me—my clothing?” Would you agree that these anonymous students appeared to have rendered a judgment in the case?

Looking Ahead

Given that in your new statement you decried an atmosphere that allowed “sexual violence to be so prevalent on campus,” would you recommend that female students accepted to the Class of 2011 attend Duke? If so, how could you support their entering an environment that you have publicly described as so dangerous?

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Would you be willing to sign a statement, such as that of the Economics Professors, saying that all students, including lacrosse players and other student-athletes, are welcome in your classes?

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These questions were gathered from comments made on our website, and on Professor KC Johnson’s website. Friends of Duke University does not endorse anonymous e-mails and does not endorse efforts to threaten or harass members of the lacrosse team, or any other Duke University students. Nor do we endorse efforts to threaten or harass signatories to the original Group of 88 ad or the “Concerned Faculty” statement. We do, however, believe the public statements by faculty members in both instances raise important questions and we support a dialogue about the questions presented in this ad and elsewhere.

In addition to this statement published in The Chronicle, FODU issued the following press release.

Press Release

Friends of Duke University

Date: February 8, 2007

Subject: Our response to the Open Letter posted by “Concerned Faculty” at Duke University

Contact: Jason Trumpbour, Spokesperson

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Background

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On April 6, 2006, a group of 88 Duke University professors published an advertisement in the University newspaper The Chronicle. This ad, entitled “We are listening to our students,” contained several references to the Duke lacrosse case. It made reference to “what happened to this young woman” and stated, “To the students speaking individually and to the protestors making collective noise, thank you for not waiting and for making yourselves heard.” It contained quotes from students such as “If something like this happens to me . . . What would be used against me--my clothing”? And “no one is really talking about how to keep the young woman herself central to this conversation.”

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These professors who became known as the “Group of 88” were widely criticized for prejudging the guilt of members of the men’s lacrosse team and for attempting to advance whatever agenda they had at the expense of these students and their reputations. Their ad was also cited by defense attorneys in their motion for a change in venue as evidence of extremely prejudicial pretrial publicity.

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Nine months later, on January 16, 2007, a group containing most of the same members and now calling itself the “Concerned Faculty” posted an open letter on their website defending their original ad. Claiming that the original ad had been “broadly, and often intentionally, misread . . . as rendering a judgment in the case,” the group rejected calls to retract or apologize for it. The complete text of the Concerned Faculty statement as well as a link to their original ad can be found here.

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Our Response

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One of the group’s members, Ronen Plesser stated, “My personal hope is that this will be the basis for a conversation on campus . . . a conversation that will eventually lead to some understanding.” However, the January 16 open letter begs more questions than it answers about the purposes of the “Listening” ad and the sort of conversation being sought given the peculiar language used to express its points and communicate its premises. The Friends of Duke University thought it appropriate to request further clarification. To that end we have today published an ad in the Chronicle asking a series of questions gathered from comments posted on our website and that of Professor K.C. Johnson’s Durham in Wonderland site.

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Friends of Duke University has repeatedly reached out to these faculty members. Our first open letter published on July 19 stated,

As for those who were quick to prejudge the accused, particularly the group of 88 professors who signed an earlier call to action, we look upon them not with malice. Instead, we ask that they now count themselves among those victimized by this spring’s false accusations. We hope that all will realize now that our enemies are not each other, but those who would profit from the unfair denigration of our university and its members.

A few days before the Concerned Faculty posted their letter, we attempted to find common ground with them by asking if they would join the University in calling for due process for Reade Seligmann, Collin Finnerty and David Evans, an issue on which we hoped everyone could agree. All of our overtures have been ignored or rebuffed.

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We remain sincere in our efforts to reach out to them. We are dismayed that, not only would they chose to ignore our efforts, but that they would instead respond with a defiant refusal to admit mistake either in judgment or expression and that they would insult the motives and/or intelligence of their critics. We do not begrudge members of the Group of 88/Concerned Faculty their right to call attention to social issues of concern to them. We instead condemn the unfair public vilification of members of the lacrosse team done in the course of expressing their concerns. We conclude our latest ad with an earnest question: “Would you be willing to sign a statement, such as that of the Economics Professors, saying that all students, including lacrosse players and other student-athletes, are welcome in your classes?”

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A copy of that statement, originally published as a letter to the Chronicle, may be found here.

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Friends of Duke University supports academic freedom for both faculty and students. We have no political agenda and have a diverse following representing all sorts of political views and walks of life. What all of us have in common is a deep commitment to ensuring justice for Reade, Collin and David and fair and equitable treatment for the rest of the team and Duke students generally both on campus and off. We hope that Duke University can once again be a place of civility and mutual respect among all of its members.

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On the Web: Our site and Professor KC Johnson’s Durham in Wonderland site