It's A-OK!

The Dept of Justice has declined to investigate the Nifong/Mangum Hoax. You know what that says to me?

It says what happened to Collin, Reade. and Dave in Durham, North Carolina is "A-OK."

Yes, "A-OK." That's an expression I picked up from Judge Ronald Stephens, the local judge/buddy boy who allowed the NBBP into the courtroom and later sobbed on the stand as he testified to Nifong's good upstanding character. Nifong, he hiccuped,,, was "A-OK."

A-OK.

Now this decision by the DOJ has expanded that "okay-ness" into many other areas. A lot of stuff we've been aghast at is ...apparently...A-OK. Let's see if I can take a deep breath and name a few.

Well, the treatment of Mr. Elmostafa is apparently A-OK. Intimidation of witnesses is now deemed a legitimate law enforcement tool . Likewise, changing Kim's "crock" into a "could be" with a sweet deal is just smart and sassy legal technique. That's A-OK as well.

That no-wrong answers line-up: that's A-OK. Any one of the many ever morphing excuses for it will suffice. Likewise the convenient absence of notes to thwart discovery and the creation of crucial notes months later is getting another affirmative nod of approval. Seems now it's confirmed that in Bull City, law enforcement officials know "Bull" can be their best friend. It's A-OK.

False Accusation is also A-OK. Crystal Mangum is a serial Accuser..six men, at least, have been victimized by her Fantastic Lies...but she is out there as we speak. Sane enough in N.C. to continue to "care" for her babies, but not sane enough to face legal consequences for her egregious actions.

Speaking of SANE....as a SANE nurse and evaluator of rape accusers, Tara Levicy still has her license and may well be waiting in some ER room tonight,... waiting to assist Women Who NEVER NEVER NEVER EVER Lie About Rape to make their charges stick. Ideologues in white uniforms..A-OK.

Melanie Sill is California Dreamin' now. On her watch, the N&O's shrill and sensational faux coverage incited the community with a fairy tale meta-narrative of the shy young student, new to dancing, raped for thirty minutes by the swaggering boys whose parents had big houses up North. To accommodate the crazed outrage of the community, the N&O printed a convenient wanted poster of the Team with wanton disregard for the safety of these young men who were forced to remain on campus for finals. Hey, no consequences for Mel , the N&O has moved her along..this was, folks, all A-OK.

What about Kim Curtis? She is back teaching at Duke. Her treatment of the LAX players in her class sanctioned by Brother Brodhead...and we know HE knows "bad" when he sees it. Well, when he sees it in helmeted student athletes..not so much in campus classrooms or the halls of the D.A.'s office. Brodhead never chastised the Payback Profs at the Classroom Pulpit or mentioned Prosecutor Nifong wasn't A-OK back then, did he? .

And while I'm on the topic of Brodhead, whatever his leadership did to cause the huge settlements being handed about..apparently isn't "bad enough." Brother Brodhead is still the face, the persona, the stalwart symbol of Dukiness the BOT wishes to promote. He's A-OK for all of them. I think of the Spanish proverb..."take what you want, says God, and pay for it." As you surely will. Or Stevenson's couplet: "O wad some power the Giftie gie us to see oursels as ithers see us?" See your President...the President of a great University... too craven to meet with the anguished parents of his own students at the darkest moment of their lives. The esteemed wordsmith... too inept to find a few appropriate words for the families at the time. The noted English scholar..too afraid to read the complete case file as offered to him in desperation and despair. Brodhead: the personification of the best standards of Duke University: he is A-OK.

And City Manager Baker who assured the media of his personal, careful monitoring of the police investigation (akin to his oversight of the burning dump and hazardous parking garage) and the existence of just ONE story from Victim Crystal. Hey, Mayor Bell, this is the best you can offer Durham...your man Baker is A-OK?

Now we are being asked to fold our tents and accept this happy resolution, this "I'm okay, you're okay" wrap up party and go home. Be glad our Innocents are cleared. Don't think about the how, or the why, or the who-is-still-in-place. Don't think about tomorrow. Don't think about the next kids. The victims-to-come. Don't think at all.

Don't you get it? Power and corruption need your comfortable complacence. Move along. It's all A-OK.

Joan Foster

Obstruction of Justice

In an April 13, 2007 article at Slate, Joseph Kennedy, associate professor of law at the University of North Carolina School of Law, considered whether Mike Nifong should face criminal prosecution for hijacking the Hoax. While Kennedy, a fellow at UNC's Parr Center for Ethics, outlines the case for prosecution of the former District Attorney, he left open the possibility that the State Bar Ethics trial would offer absolution for Nifong. The recently released Order of Discipline against Nifong makes clear that the crimes suggested by Kennedy merit investigation by the State Bureau of Investigation and the Department of Justice.

Did the DA in the Duke lacrosse case commit a crime? - Joseph Kennedy, Slate

When does a prosecution itself become a crime? It is well understood that prosecutors enjoy broad immunity from civil suit for their actions as prosecutors. That immunity, however, does not protect them from criminal liability. North Carolina District Attorney Mike Nifong faces possible disbarment for allegedly violating the rules of legal ethics in the Duke lacrosse case. A number of members of Congress have asked the Department of Justice to investigate his conduct, and the North Carolina attorney general has not ruled out criminal charges. Should Nifong face prosecution for his handling of the case?

Maybe. Nifong has not yet had a chance to present his defense to the ethics charges—that will happen in mid-June. But if Nifong indeed committed all of the acts alleged in the ethics complaint, he may also have obstructed justice in violation of state law and committed a federal civil rights crime.

The strongest basis for a prosecution on either charge would probably be the allegations that Nifong tried to suppress DNA test results that suggested the innocence of the defendants (three Duke lacrosse players he charged with raping a dancer whom the team hired to perform). Those results ruled out the defendants as the sources of DNA material found in the clothes and on the body of the accuser. Obstruction of justice extends to actions by attorneys aimed at suppressing evidence in criminal cases. Such cases are unusual but not completely unheard of. Last year, the Department of Justice charged one of its own prosecutors with obstruction of justice for allegedly failing to disclose exculpatory evidence. In that case, the prosecutor argued in a terrorism trial that he had sketches by the defendants of a Jordanian hospital targeted for attack. The charge is that the prosecutor also had photographs of the hospital that contradicted his claims about the sketches, and that he didn't disclose them. This may be the first time that a prosecutor has been charged with obstructing justice for failing to turn over exculpatory materials—evidence that suggests a defendant's innocence.

Obstruction of justice is a felony in North Carolina if it's committed with the intent to deceive. The state bar has accused Nifong of intentionally excluding the exculpatory DNA results from his expert's report and of subsequently misleading the trial judge as to their existence. If Nifong really intended to deceive the judge and the defense in order to prevent the introduction of those results into evidence at trial, he committed this felony.

A federal charge of depriving the defendants of their civil rights would get to the same issues by a different route. According to federal statute, it is a crime for any person acting "under color of law" to willfully deprive a person of a constitutional right. Acting "under color of law" essentially means using the power of the government, and it includes the actions of state prosecutors in criminal cases. The constitutional right at issue would be the defendants' well-established due process right to disclosure by the prosecutor of exculpatory evidence. Nifong would only be guilty of the federal civil rights charge if he specifically intended to deprive the defendants of their constitutional right by suppressing the test results. The statute does not require Nifong to have believed he was prosecuting innocent defendants—and to have gone after them anyway. Deliberately depriving a defendant of his constitutional rights is a crime if you believe him to be guilty.

The Disciplinary Hearing Commission’s findings of fact make clear that several of Nifong’s actions were intended to deceive the court and the defendants thereby constituting multiple instances of Obstruction of Justice as defined by Kennedy and required by Statute. The DHC also makes clear that Nifong, while "acting 'under color of law'," "specifically intended to deprive the defendants of their constitutional right by suppressing the test results."

Findings of Fact, Conclusions of Law, and Order of Discipline

The representations contained in Nifong's May 18 written discovery responses were intentional misrepresentations and intentional false statements of material fact to opposing counsel and to the Court...

Nifong's response to Judge Stephens' question was a misrepresentation and a false statement of material fact...

Nifong's representations to Judge Stephens at the June 22 hearing were intentional misrepresentations and intentional false statements of material fact to the Court and to opposing counsel...

Nifong did not comply with Judge Stephens' June 22 Order...

Nifong's statements and responses to Judge Smith at the September 22 hearing were intentional misrepresentations and intentional false statements of material fact to the Court and to opposing counsel...

Nifong's representations that he was unaware of the existence of DNA from multiple unidentified males on the rape kit items and/or that he was unaware of the exclusion of such evidence from DSI's written report, were intentional misrepresentations and intentional false statements of material fact to the Court and to opposing counsel...

Following his exoneration of the Duke Innocents, Attorney General Roy Cooper suggested that criminal charges against Nifong were a possibility to be considered after letting “the process work with the North Carolina State Bar” with the expectation that the State Bar’s investigation and hearing would offer more information on whether criminal charges were warranted.

Q: What about Mike Nifong? Do you think that his actions warrant a criminal investigation?

COOPER: Well, I think it's important that we let the process work with the North Carolina State Bar. Our investigation dealt mostly with the facts of this case and making a decision. Their investigation is dealing more with the pretrial comments and with the discovery issues on the DNA that our investigators really did not get into the details of that.

I think once the bar finishes that hearing process, then we will know more about that process when it comes.

Q: Is it a possibility?

COOPER: It's certainly a possibility, but I don't want to -- to speculate at this point. I think all options are certainly on the table.

If Cooper was genuinely looking to the State Bar for guidance before addressing criminal charges of obstruction of justice, it would appear that he now has the answers he was waiting for. In light of the DHC’s findings that indicate clearly that the defrocked DA committed felony obstruction of justice, Cooper now has no excuse for delaying a decision on pursuing criminal charges against Nifong. Given his public suggestion that the possibility of criminal charges remained up and the more would be known about whether charges are warrant upon conclusion of the State Bar investigation and hearing, the AG must now either commence a criminal investigation or explain why he has decided, after waiting for findings which clearly indicate that charges are warranted, to give Nifong a pass for his felony.

As with AG Cooper and the pass given to Nifong on felony obstruction of justice charges, the Department of Justice remains silent on federal charges despite the clear outline presented by the DHC.

Wendy Murphy Interview

In a television interview with Jim Braude of New England Cable News, Wendy Murphy threatens to continue her vicious campaign against NC Attorney General Roy Cooper, the exonerated defendants of the Nifong/Mangum Hoax, and their attorneys for a "very long time." While accusing the State of North Carolina's top prosecutor of basing his decision to exonerate the Hoax defendants on political motives rather than factual innocence, Murphy cites the Wilmington Journal as the source for her continued claims that the false accuser was paid off and the Associated Press as the source for her accusations that defense attorney's withheld 1,200 pages of evidence.

Click To View: Wendy Murphy TV Interview

Durham City Manager Baker Approves of Corrupt Police Procedures, Again

Following the exoneration of the Nifong/Mangum Hoax victims by North Carolina Attorney General Roy Cooper on April 11, Durham City Manager Patrick Baker expressed concern over Cooper's assertion that the identification procedures employed by the Durham Police Department were "faulty and unreliable." Stating that he looked forward to the Attorney General's anticipated report to help determine whether the procedures were inappropriate for use before the Grand Jury, Baker offered a review and promised accountability.

Cooper has said his office will release a written report this week detailing the findings of its investigation, which began in January after Nifong recused himself in the face of a N.C. State Bar disciplinary proceeding.

Baker said on Wednesday that officials would study the report and conduct their own post-mortem on the Police Department's investigation.

...

"We need to debrief about our actions in the case, and certainly I look forward to parsing out Police Department actions as opposed to prosecution actions," Baker said. "They can be one in the same or completely separate. And certainly we need to be accountable for any problems we created in this case."

Baker also said he wanted to hear more about Cooper's objections to the disputed lineup, and about "whether or not that type of identification should have been used in the grand jury." (Ray Gronberg, Herald Sun, 4/14/07)

"At the end, I think justice was served," Baker said. "But with the tone of the attorney general's statement, it's incumbent on us to review and debrief on what happened and how we got there. There was a complete, 180-degree swing from 'these three young men are rapists' to 'these three young men did nothing whatsoever.' That's not something that can be dismissed as just how the criminal justice system works. We need to take a long look at that and certainly review our role in the entire process." (Ray Gronberg, Herald Sun, 4/12/07)

Now that the Attorney General has released his report which strongly condemned the identification procedures, it appears that City Manager Baker has decided against accountability. Holding true to form, the self declared "CEO of Durham" has backed away from responsibility and opted instead to defend the corrupt procedures used to mislead the Grand Jury into indicting innocent men in order to satisfy the demands of Defendant Nifong.

On Friday, the News & Observer called called for Durham Police Chief Steve Chalmers to offer a full accounting of his department's participation in the Nifong/Mangum Hoax. Yesterday, City Manager Patrick Baker, as he has throughout the case, answered on behalf of Chief Chalmers and his department. In an interview with the N&O’s Matt Dees, Patrick Baker indicated that a report would be forthcoming. Unfortunately, Baker's comments suggest the report will not be the full accounting demanded, but, instead, a deceptive attempt to justify the failures and complicity of the Durham Police Department in the Hoax rather than an effort to be "accountable for any problems we created in this case."

Friday’s News and Observer editorial:

Obscured in the hubbub following the dropped charges in the Duke lacrosse case has been the disappointing role played by the Durham Police Department. The department's own procedures were swept off the table by a district attorney determined to prosecute what seemed to be a shaky case from the start.

Because the alleged incident occurred during a party off campus, in a house rented by members of the team, officers with the Durham police, not Duke University's own police force, investigated after exotic dancer Crystal Gail Mangum claimed she had been raped by three Duke lacrosse players. Early in the investigation the department followed a suggestion by the DA, Mike Nifong, to abandon its photo identification policy.

The policy requires five "filler" photos -- of people not linked with the case -- for each photo of a suspect. Nifong said Mangum should be asked to identify the attackers from 46 photos that included only members of the lacrosse team.

As The N&O's Joseph Neff reported recently in his thorough retrospective on the case, a detective discussed the unusual lineup procedure with his supervisors. Inexcusably, no one objected. The policy also says that an officer unconnected to a case should conduct photo lineups, to avoid the risk of an officer familiar with a suspect influencing which photo is fingered. But Sgt. Mark D. Gottlieb, lead investigator in the Duke case, presented the photos to Mangum.

…

With state Attorney General Roy Cooper deciding that all remaining charges against the three athletes should be dropped (Nifong himself had dismissed charges of rape after first obtaining indictments), the spotlight has been on Nifong's mishandling of the case. But the police department bears some of the blame. Chief Steve Chalmers now should offer an accounting of his department's professional lapses; explain what, if any, discipline has been meted out; and detail what safeguards have been put in place to keep such lapses from occurring again. If Chalmers balks, his bosses, City Manager Patrick Baker and the City Council, should insist.

Yesterday’s N&O report on Baker’s comments:

One flaw in the Duke lacrosse case pointed out by the attorney general's report Friday was that the lineup in which accuser Crystal Gail Mangum identified players as rapists was "of questionable validity." Durham police violated their own policy by not interspersing photos of nonsuspects.

On Friday, City Manager Patrick Baker, who oversees the Police Department, offered an explanation: None of the three photo arrays Mangum viewed technically were lineups.

The photos were intended as much for Mangum to identify witnesses as to identify suspects, Baker said. That doesn't qualify as a lineup, he said.

Baker promised a report next week from Police Chief Steve Chalmers with fuller explanations of that and other issues raised in the Friday report.

The report, Baker said, "will at least explain the basis for why I didn't believe and still don't believe we were conducting a lineup at the time."

Although Baker apparently hopes to dupe the public into believing that "none of the three photo arrays Mangum viewed technically were lineups," the signed instruction form that preceded at least one of the three lineups suggests otherwise. It is titled "Sequential Identification Procedure Verbal Instructions and Certification" and contains the notation "General Order 4077 Attachment 1."

........................................

In at least two significant ways, each of the three photo identification attempts that Baker pretends were not lineups, violated General Order 4077:

1. Policy calls for an independent administrator to run the lineup, not the primary investigator. This avoids any unintentional influence from the investigator.


2. The lineup should include five "fillers" -- people who have no connection to the case -- for every suspect, to protect against faulty identification. If an accuser picks a filler photograph, the defense is certain to challenge that witness's reliability. (N&O)
   

Despite Baker's word games, the Attorney General’s Nifong/Mangum Hoax Summary of Conclusions, strongly condemned the very procedures the DPD cover-up report will attempt to spin.

Deficiencies in the Process of Identification of Accused Individuals

As the investigation of the rape allegations went forward, the Durham Police Department investigators sought information from the accusing witness to identify her alleged assailants. The special prosecutors concluded that the process by which the accusing witness ultimately identified David Evans, Reade Seligmann and Collin Finnerty as her attackers was of questionable validity.

The first identifying information was provided to authorities on March 14, 2006, the day after the party, when she referred to her attackers as “Adam,” Brett” and “Matt.” In subsequent statements to the police on March 16, 2006 and April 6, 2006, she described various versions of how the assault occurred, but continued to refer to “Adam,” “Brett” and “Matt” as her assailants.

Two days later, on March 16, 2006, the Durham police showed the accusing witness four different photo arrays in an attempt to obtain identification evidence. The 24 photographs she was shown included only members of the Duke lacrosse team. After reviewing these photographs the accusing witness was only able to state that she was 70 percent certain that Reade Seligmann was at the party, although she could not recall where she saw him. She was unable to identify any player as one of her attackers.

Eight days after the party, on March 21, 2006, the accusing witness was shown another 12 photographs of lacrosse team members. After being shown this array twice, she was again unable to identify any photograph as that of one of her attackers. These 12 photographs included a picture of David Evans, which she also viewed twice and failed to identify.

In late March, 2006, the Durham police obtained Nontestimonial Identification (NTID) orders requiring each white member of the lacrosse team to submit DNA samples and allow photographs to be taken. The Durham police, at the direction of the District Attorney, converted these photographs into a PowerPoint presentation.

On April 4, 2006, the accusing witness was shown these new photographs of the players through a PowerPoint presentation. The accusing witness was advised that she would be viewing photos of individuals that the police had reason to believe attended the party.

Each photograph was projected individually, rather than simultaneously in a line-up format. She was shown photographs of only the 46 white lacrosse team members. When shown the photograph of Reade Seligmann, she stated she was 100 percent certain that he had forced her to perform oral sex, but that was all that he did. The photograph of Collin Finnerty was identified with 100 percent certainty as a player who had raped her vaginally and anally. When viewing the photograph of David Evans she identified him with “about 90 percent certainty.” She stated: “He looks like one of the guys who assaulted me . . . He looks just like him without the mustache.” In addition, the accusing witness identified at least one picture of a player from the PowerPoint presentation as being present at the party who further investigation revealed was not there.

The photographic arrays shown to the accusing witness on four different occasions were limited to members of the lacrosse team. “Fillers,” or individuals not regarded as potential suspects, as recommended by Durham Police Department policy for identifying suspects, were never included.

It was not until the April 4, 2006, PowerPoint presentation of 46 team members, without “fillers,” that the accusing witness first identified the three accused individuals as her attackers.

Almost nine months later, on December 21, 2006, the District Attorney’s chief investigator on the cases arranged a meeting with the accusing witness. Contrary to the practice followed in prior meetings with the accusing witness, the investigator met with her without the presence of another officer to witness and corroborate the questions and answers.

Significantly, the chief investigator also showed her the photographs of lacrosse team members she had previously viewed on April 4, 2006 in the PowerPoint presentation. The chief investigator’s interview of the accusing witness was not recorded and neither the chief investigator’s notes nor his subsequent report revealed that the accusing witness was shown the photographs again, although he acknowledged to the special prosecutors in an interview that he had done so.

No explanation for this was contained in the chief investigator’s report or notes. His report does reflect, without explanation, that the accusing witness, for the first time, began referring to the three individuals as David Evans, Reade Seligmann and Collin Finnerty, rather than “Adam,” “Brett” and “Matt.” The chief investigator’s report also does not indicate whether the accusing witness was still able to identify the three individuals previously identified on April 4, 2006.

Showing the accusing witness these photographs which were the subject of a pending motion to suppress, along with her use of the proper names of those charged, provided the defense additional grounds to argue that the out of court and in court identifications should be suppressed, which would effectively have ended the case.

The stinging criticism offered by the Nifong/Mangum Hoax Summary of Conclusions echoes the universal condemnation of the no-fail lineup lottery that has come from all commentators not named Mike Nifong, Wendy Murphy, or Patrick Baker.

Psychologists Gary Wells and Brian Cutler:

Psychologists Gary Wells and Brian Cutler helped design a procedure in 2003 for witnesses to identify crime suspects. Police departments across North Carolina embraced the procedure. The Durham Police Department adopted it almost word- for-word in February.

The conduct of the Durham police in the Duke lacrosse case, however, is a case study in violating the new policy, the psychologists said. And as a result, police have injected doubt into a woman's selection of three lacrosse players whom she accused of rape.

Police violated two fundamental rules for running an identification procedure, said Wells, a professor at Iowa State University, and Cutler, a professor at UNC-Charlotte.

First, the psychologists said, police did not have an independent investigator administer the process. Second, they neglected to include photos of nonsuspects, known as fillers.

The procedures used can yield only uncertain or misleading results, Wells said, and that's bad for everyone.

If the woman was raped, Wells said, the botched lineups undermine the prosecution and the search for justice.

"And if she wasn't sexually assaulted, or was assaulted by someone else, [the players are] in a position of guilty until proven innocent," Wells said. "It really shifts the burden to the person identified to prove it wasn't them. That is a profoundly difficult and very unfair situation."

...

Cutler, the UNC-Charlotte psychologist, said a witness may identify a suspect for the correct reason: The suspect is the perpetrator.

But, he said, there can be other reasons: The witness could be guessing; the witness could be lying; the witness could be influenced by police behavior to pick a suspect; the witness could be influenced by repeated questioning or by having seen a picture on television or in the newspaper.

"A well-conducted test will maximize the possibility that the reason for identification is recognition and will rule out the other nuisance or extraneous results," Cutler said.

...

According to Wells and Cutler, police must give a witness the chance to pick the wrong person. This is why photo lineups contain fillers -- photos of people who resemble the suspects but are demonstrably innocent.

Durham police showed the accuser only photos of Duke lacrosse players, with no fillers. The District Attorney's Office and police had declared all 46 players suspects.

"It's a multiple-choice test with no wrong answers," Wells said.

Wells said he would have urged Durham police to include photos of lacrosse players from other universities.

"You mix them in, and if the witness doesn't know ... or is making it up, she'll pick the fillers," Wells said. "We'd know we have a problem. As it is, I could pick a suspect out of that lineup." (Joseph Neff, News & Observer, 10/08/06)

Duke University Professor of Law James Coleman

Coleman said he's followed the case closely in the newspapers but hasn't spoken with any of the lawyers involved. He said he was disturbed by the transcript of the identification procedures, where a police officer told the accuser that she was about to look at photos of everyone who attended the party.

"The officer was telling the witness that all are suspects, and say, in effect, 'Pick three,' " Coleman said. "It's so wrong; it had to be done for a reason other than identification." (Anne Blythe and Joseph Neff, News & Observer, 6/13/06)

60 Minutes asked James Coleman, a prominent law professor at Duke University Law School who helped establish guidelines in North Carolina designed to protect against false identifications in police line-ups. He says this line-up broke one basic principle: there were no “filler” photos, no pictures of people not connected to the case. The accuser only saw photos of lacrosse players who police told her were at the party.

"If she’s told all of these people who were considered suspects were at the party, so you pick three and we’ll indict those three," Coleman says.

"So she can’t make a mistake," Bradley remarks.

"Can’t make a mistake," Coleman replies.

Professor Coleman says the line-up ordered by the D.A. for the Duke lacrosse case violated local, state and federal guidelines. The D.A. has been quoted as saying that will be up to a judge to decide.

Asked why a district attorney would order a line-up that breaks virtually every rule in the book, Coleman says, "Well that's a good question for the D.A. But I assume that, you know after his initial performance, in this case, he needed to indict at least three players. And charge them with what he said was a rape that had occurred." (60 Minutes, CBS, 10/15/2006)

The circumstances under which the alleged victim identified the three defendants is typical. An assumption has been that Nifong and the Durham police merely botched the procedures under which the alleged victim identified the three members of the lacrosse team whom she claims raped her. According to the police account of the identification, however, the police officer who presided over the proceedings told the alleged victim at the outset that he wanted her to look at people the police had reason to believe attended the party. Thus, the police not only failed to include people they knew were not suspects among the photographs shown the woman, they told the witness in effect that there would be no such "fillers" among the photographs she would see.

This strongly suggests that the purpose of the identification process was to give the alleged victim an opportunity to pick three members of the lacrosse team who could be charged. Any three students would do; there could be no wrong choice. The prosecutor would not care if the pre-trial identification was subsequently thrown out by the court. The accuser would identify them at trial by pointing to the three defendants seated in front of her as the three men who assaulted her. The prosecutor would argue that she had an independent basis (independent of the identifications thrown out) for doing so. -- James Coleman 6/13/06

The condemnation of the Nifong/DPD's corrupt identification procedure within the Attorney General's summary and the comments of Wells, Cutler, and Coleman reflect the results of a Department of Justice study indicating that 85% of wrongful convictions are caused by false eye witness identifications. Their criticism also reflects findings by the Innocence Project, which notes that more than 75% of the exonerations it has achieved were initially cases of wrongful convictions obtained through false identification

Innocence Project:

Eyewitness Misidentification
Eyewitness misidentification is the single greatest cause of wrongful convictions nationwide, playing a role in 75% of convictions overturned through DNA testing.

While eyewitness testimony can be persuasive evidence before a judge or jury, 30 years of strong social science research has proven that eyewitness identification is often unreliable. Research shows that the human mind is not like a tape recorder; it neither records events exactly as it sees them, nor recalls events like a tape recorder that has been rewound. Instead, witness memory is like any other evidence at a crime scene; it must be preserved carefully and retrieved methodically, or it can be contaminated.

When witnesses get it wrong
In case after case, DNA has proven what scientists already know – that eyewitness identification is frequently inaccurate. In the wrongful convictions caused by eyewitness misidentification, the circumstances were different, but witnesses, law enforcement officials and juries all relied on testimony that could have been more accurate if reforms proven by science had been implemented.

Mistaken identifications are the leading factor in wrongful convictions
Mistaken eyewitness identifications contributed to over 75% of the more than 194 wrongful convictions in the United States overturned by post-conviction DNA evidence.

• Inaccurate eyewitness identifications can confound investigations from the earliest stages. Critical time is lost while police are distracted from the real perpetrator, focusing instead on building the case against an innocent person.


• Despite solid and growing proof of the inaccuracy of traditional eyewitness ID procedures – and the availability of simple measures to reform them - traditional eyewitness identifications remain among the most commonly used and compelling evidence brought against criminal defendants.

Traditional eyewitness identification practices – and problems

• In a standard lineup, the lineup administrator typically knows who the suspect is. Research shows that administrators often provide unintentional cues to the eyewitness about which person to pick from the lineup.


• In a standard lineup, an eyewitness is shown individuals or photographs simultaneously. Research shows that this tends to lead eyewitnesses to choose a lineup member based upon a relative judgment (i.e. who looks most like the perpetrator?), rather than basing the identification on his or her own mental image of the perpetrator.


• In a standard lineup, without instructions from the administrator, the eyewitness often assumes that the perpetrator of the crime is one of those presented in the lineup. This often leads to the selection of a person despite doubts.

How to Improve the Accuracy of eyewitness identifications
The Innocence Project endorses a range of procedural reforms to improve the accuracy of eyewitness identification. These reforms have been recognized by police, prosecutorial and judicial experience, as well as national justice organizations, including the National Institute of Justice and the American Bar Association. The benefits of these reforms are corroborated by over 25 years of peer-reviewed comprehensive research.

1. The “Double-blind” Procedure/ Use of a Blind Administrator: A “double-blind” lineup is one in which neither the administrator nor the eyewitness knows who the suspect is. This prevents the administrator of the lineup from providing inadvertent or intentional verbal or nonverbal cues to influence the eyewitness to pick the suspect.

2. Instructions: “Instructions” are a series of statements issued by the lineup administrator to the eyewitness that deter the eyewitness from feeling compelled to make a selection. They also prevent the eyewitness from looking to the lineup administrator for feedback during the identification procedure. One of the recommended instructions includes the directive that the suspect may or may not be present in the lineup.

3. Composing the Lineup: Suspect photographs should be selected that do not bring unreasonable attention to him. Non-suspect photographs and/or live lineup members (fillers) should be selected based on their resemblance to the description provided by the witness – as opposed to their resemblance to the police suspect. Note, however, that within this requirement, the suspect should not unduly stand out from among the other fillers. (More detailed recommendations can be provided by request by the Innocence Project).

4. Confidence Statements: Immediately following the lineup procedure, the eyewitness should provide a statement, in his own words, that articulates the level of confidence he has in the identification made.

5. The lineup procedure should be documented: Ideally, the lineup procedure should be electronically recorded. If this is impracticable, an audio or written record should be made.

6. Sequential Presentation of Lineups: When combined with a “blind” administrator, presenting lineup members one-by-one (sequentially), rather than all at once (simultaneously) has been proven to significantly increase the accuracy of eyewitness identifications. Specifically, research has shown that witnesses tend to make a “relative judgment” among lineup members when they are presented simultaneously, and thus are more likely to choose an innocent person. Presenting lineup members one-by-one has been proven to reduce the likelihood of witnesses making “relative judgments” and increases overall accuracy of identifications.

In making recommendations similar to those of the Innocence Project, the North Carolina Actual Innocence Commission and the US Department of Justice both suggested that employment of the recommended "best practices" be left to the discretion of local law enforcement agencies.

North Carolina Actual Innocence Commission

The following recommendations are the results of a study conducted by the North Carolina Actual Innocence Commission. Information used by the Commission in reaching its recommendations included the U.S. Department of Justice research report, Eyewitness Evidence, A Guide for Law Enforcement (October 1999); the New Jersey Division of Criminal Justice training manual, Attorney General Guidelines for Preparing and Conducting Photo and Live Lineup Identification Procedures (August 2001); a survey and study of the identification procedures currently followed by North Carolina’s law enforcement; and presentations and consultations by experts Professor Gary Wells, Distinguished Professor of Psychology at Iowa State University and expert on eyewitness memory; Professor Brian Cutler, Chair of the Department of Psychology at UNC Charlotte and expert on eyewitness memory; and New Jersey Deputy Attorney General, Lori Linskey, who was responsible for the statewide implementation of revised identification procedures in that state. The recommendations cover the most important aspects of “best practices” in witness identification procedures; however, they leave the details of implementation of these practices to the discretion of law enforcement.

The recommendations made herein are not intended to create, do not create, and may not be relied on to create, any rights, substantive or procedural, enforceable at law by any party in any matter civil or criminal. Jurisdictional or logistical conditions may preclude the use of particular procedures.

Eyewitness Evidence, A Guide for Law Enforcement (October 1999)

In developing its eyewitness evidence procedures, every jurisdiction should give careful consideration to the recommendations in this Guide and to its own unique local conditions and logistical circumstances. Although factors that vary among investigations, including the nature and quality of other evidence and whether a witness is also a victim of the crime, may call for different approaches or even preclude the use of certain procedures described in the Guide, consideration of the Guide’s recommendations may be invaluable to a jurisdiction shaping its own protocols. As such, Eyewitness Evidence: A Guide for Law Enforcement is an important tool for refining investigative practices dealing with this evidence as we continue our search for truth.

By offering his approval of the corrupted process that led to the indictment of factually innocent men, Durham City Manager Patrick Baker demonstrated his willingness to cover up the corrupt procedures. His shameful decision to endorse the procedures that are universally denounced also demonstrates clearly the need for the North Carolina legislature to ignore the suggestions of the NCAIC and DOJ, by disallowing local jurisdictions to selectively install and follow "best practices." The Eyewitness Identification Reform Act proposes making the actions Baker endorses a criminal act.

Eyewitness Identification Reform Act

A bill was filed in the state Legislature Thursday that could change the way police conduct photo line-ups. It’s a bill that could have helped in the Duke lacrosse case.

When Durham police asked accuser Crystal Mangum to identify her attackers, they only showed her pictures of 46 Duke Lacrosse players. The person who conducted the line-up was also involved in the investigation.

A bill filed in the General Assembly would make both of those acts illegal.

“It'll make sure innocent people are not put through the trauma of an unfair process,” said Rep. Deborah Ross, (D) Wake County. “It'll also lead us to the guilty more quickly.”

...

Those requirements have investigators use filler photos of people not associated with the crime. They also eliminate anyone working on the investigation from being involved.

...

If an agency didn't comply, this bill wouldn't make it a criminal offense. It mainly acts as a deterrent to officers. (WRAL 4/19/2006)

Patrick Baker’s incredible intention to spin the corrupt identification procedures that provided the basis for the Nifong/Mangum Hoax into an acceptable investigative tool, despite the universal condemnation of the contrived lineup lottery, does not allow much hope that his forthcoming report will provide a full accounting. Rather, Baker’s comments give the impression that the purpose of the report is not to professionally account, but to intentionally distort.

As incredible as Baker's attempt to affirm the unethical identification procedures may appear, his aversion to accountability, willingness to deceive, and acceptance of improper procedure should come as no surprise. Throughout the Nifong/Mangum Hoax, Baker has proven himself a willing enabler of the misdeeds of his police department and the rogue prosecutor. Outside the Hoax, Baker has demonstrated an equal willingness to compromise procedure and truth.

Baker the Spin Maker

Crystal Mangum Never Changed Her Story

"Baker said he has never received any indication that the woman said she was raped by 20 men or that she changed her story.

"I have no idea where that came from," Baker said. "I've had a lot of conversations with the investigators in this case and with officials at Duke, and at no time did anyone indicate the accuser changed her story. If that were true, I'm sure someone would have mentioned it to me."

Durham Police Conducted an Actual Investigation

Baker, who spoke with police officials Tuesday about the chain of events, bristled at the implication that city officers did not believe the accuser. He said that the incident was classified as a sexual assault about 30 minutes after the woman arrived at the hospital and that investigators were quickly put on the case.

"Any assertion that the Durham Police Department didn't take this case seriously or indicated that it would blow over is completely contradicted by the facts and our actions," Baker said. (N&O)

“Baker said he will be interested to see what new details the show brings to light, but he doesn't believe the Durham Police Department's work on the case should be second-guessed if new statements contradict previous ones.”

"If the dancer says one thing to our officers and another to '60 Minutes,' it raises questions about her credibility and the credibility of the entire case," Baker said. "The Police Department is at the whim of the evidence given to them. ... If people have given the Durham Police Department the wrong information, it's certainly going to affect the DA's ability to prosecute the case."

“But, he cautioned, "Keep in mind these men were indicted by a grand jury. ... It wouldn't be the first time an indictment has occurred based on information that is later proven to be false. I think justice needs to be served. I don't want anyone to go through indictments when they're innocent. If the witness or the victim is not telling the truth, that's going to come out." (Herald Sun)

"The Durham Police Department has responded quickly and adequately under the circumstances." (CNN)

In affidavits, the police said there was medical evidence of rape and sodomy. Patrick W. Baker, the Durham city manager, told the City Council on Thursday that the police were continuing to collect evidence. (NY Times)

It took two days before police searched the house where a woman said she was raped by Duke University lacrosse players because 31 hours passed before she was able to provide details about what happened, the city manager says. The woman reported within an hour that she had been raped at a March 13 lacrosse team party, according to police. But she couldn't provide a lengthy interview until later, City Manager Patrick Baker said. He told the Durham City Council Thursday that emotional and physical trauma can often delay a witness's ability to tell police what happened. "The basic rule of thumb is that we work at the complaining witness's timetable," he said. (TL)

"But, when it comes to allegations of sexual assaults, we -- the -- the basic rule of thumb is that we work at the -- the complaining witness' timetable." (CNN)

What Right to an Attorney?

Baker, who oversees the police department, said the visits at dormitories were similar to a "knock and talk," in which officers chat up residents about a crime. Players' attorneys objected to detectives' questioning of players without the lawyers' permission.

Baker said that because the students were not indicted and Duke police knew of the visit, authorities were not violating anyone's rights.

"There were three individual lacrosse players we talked to, and they politely refused to talk to us," Baker said. "That's within their rights, and we moved on."

Don't Drink the Water

On Friday, Baker repeated assertions that the failure to disclose the unflattering data resulted from a misunderstanding of the rules, as well as from a series of honest mistakes. He also said state officials had not clearly laid out what test results the city was required to disclose.

"I've been concerned whether this is a protocol issue or a public health issue, and I feel it is a protocol issue," the city manager said. "If we were gaming the system or trying to hide something and we had all of this information, I don't know why we wouldn't have just gotten rid of it. ... I drink the water. My kids drink the water. I want to know if the water is safe and what can be done to make it safer."

"We're going to follow the letter of the law," Baker said. "Since we have been accused of not following the letter of the law, we'll do what [state officials] ask us to do."

Your Pants and Your Dump are on Fire

"This has been a very difficult time for the community and for the administration," Baker said at a City Council meeting. "I certainly personally regret that this incident occurred and that many of our citizens were affected by the yard waste fire. This has been a lesson. I hate to make mistakes like this. I hate for this organization to make mistakes like this. We are putting measures in place to make sure the events that happened ... don't happen again."

Most dangerously, Patrick Baker’s inane word games and public approval of the purposefully corrupted procedures utilized in the Hoax risk setting a precedent that invites the Durham Police Department to ignore set procedures in the future. By adopting Defendant Nifong’s transparently self-serving argument that a lineup is not a lineup, Baker subjects Durham citizens to a law enforcement setting which can freely disregard proper procedures, ignore the basis for pending legislation designed to make employment of similar procedures a criminal act, and dismiss studies by the Innocence Project, the North Carolina Actual Innocence Commission, the Department of Justice, and the nation's most respected academics in the field.

In the Nifong/Mangum Hoax, a demonstrably unstable false accuser was encouraged by Durham police to randomly identify three innocent young men for a crime that the independent investigation by the NC Attorney General’s Office proved never occurred. Acting as willing accomplices of a politically motivated prosecutor determined to seek fraudulent indictments vital to his election campaign, Durham police then presented those “identifications” to a grand jury in order to gain indictments of factually innocent men. An ethical city manager would investigate and publicly explain the departmental failures that resulted in the Durham PD docilely complying with the malicious whims of a rogue prosecutor willing to sell his soul to win an election. For Baker, it appears that absolving the Durham Police Department of responsibility outweighs ensuring that similar injustice is avoided in Durham.

Philip Wood

Motion to Suspend Nifong Filed

A ten page motion has been filed today with the Durham County Superior Court requesting the Court act as directed by NCGS §7A-66, suspend Durham County District Attorney Mike Nifong pending further proceedings, and to proceed with his removal from office as directed by NCGS §7A-66. In support of the motion, petitioner Beth Brewer reiterates her charges that DA Nifong "has committed willful misconduct in office, and that he has engaged in conduct prejudicial to the administration of justice which brings the office into disrepute, both of which are grounds for removal from office under NCGS §7A-66."

As filed with the Court, the motion reads, in part, as follows:

MOTION TO SUSPEND DISTRICT ATTORNEY NIFONG PENDING FURTHER PROCEEDINGS AND TO REMOVE HIM FROM OFFICE

COMES NOW PETITIONER ELIZABETH M. BREWER, by and through the undersigned attorney, and prays the Court to act as directed by NCGS §7A-66, Removal of District Attorneys, to suspend District Attorney Michael B. Nifong, pending further proceedings, and to proceed under the provisions NCGS §7A-66 to remove him from office, and in support of this motion shows the Court the following:

1. On February 9, 2007, Petitioner filed an affidavit in this matter under the provisions set forth in NCGS §7A-66, Removal of district attorneys, requesting the removal of District Attorney Mike Nifong on the grounds that District Attorney Nifong has committed willful misconduct in office, and that he has engaged in conduct prejudicial to the administration of justice which brings the office into disrepute, both of which are grounds for removal from office under NCGS §7A-66.

2, NCGS §7A-66 states in part: "A proceeding to suspend or remove a district attorney is commenced by filing with the clerk of superior court of the county where the district attorney resides a sworn affidavit charging the district attorney with one or more grounds for removal. The clerk shall immediately bring the matter to the attention of the senior regular resident superior court judge for the district or set of districts as defined in G.S. 7A-41.1(a) in which the county is located who shall within 30 days either review and act on the charges or refer them for review and action within 30 days to another superior court judge residing in or regularly holding the courts of that district or set of districts. If the superior court judge upon review finds that the charges if true constitute grounds for suspension, and finds probable cause for believing that the charges are true, he may enter an order suspending the district attorney from performing the duties of his office until a final determination of the charges on the merits. During the suspension the salary of the district attorney continues. If the superior court judge finds that the charges if true do not constitute grounds for suspension or finds that no probable cause exists for believing that the charges are true, he shall dismiss the proceeding."

3. On February 12, 2007, this Court issued an Order that "all further proceedings in this case are hereby held in abeyance pending the trial before the North Carolina State Bar."

4. More than sixty days have passed since the filing of the Petition in this matter.

5. As part of the February 12 Order, the Court made "preliminary findings of fact," including notice of District Attorney Nifong's pending disciplinary proceedings before the North Carolina State Bar, scheduled to begin on June 12, 2007.

6. On April 13, 2007, the panel of the North Carolina Disciplinary Hearing Commission assigned to Mr. Nifong's case denied Mr. Nifong's Motion to Dismiss some of the charges before the panel. Attachment 1

7. The Court can take notice of the fact that the Grievance Committee of the North Carolina State Bar conducted a nine-month examination of Mr. Nifong's conduct in this case prior to finding probable cause of his violations of ethics rules and filing its complaint and amended complaint (filed with Petitioner's Affidavit) with the Disciplinary Hearing Commission of the North Carolina State Bar.

8. The Court correctly did not find that a complete evidentiary record is required prior to a probable cause determination, which is what the statute by its plain language requires to be made within 30 days of the filing of the petition.

9. On April 11, 2007, the Attorney General of the State of North Carolina, Mr. Roy Cooper, announced the results of the extensive investigation made by the special prosecutors, Jim Coman and Mary Winstead, into the cases cited in Petitioner's Affidavit. Attachment 2

10. In that statement he announced the dismissal of the charges in the cases. He stated unequivocally that the defendants were innocent. He stated that there was no evidence to support the charges, and said they were "the tragic result of a rush to accuse and a failure to verify serious allegations." Attachment 2

11. Attorney General Cooper further stated:

"The eyewitness identification procedures were faulty and unreliable. No DNA confirms the accuser's story. No other witness confirms her story. Other evidence contradicts her story. She contradicts herself. Next week, we'll be providing a written summary of the important factual findings and some of the specific contradictions that have led us to the conclusion that no attack occurred.

In this case, with the weight of the state behind him, the Durham District Attorney pushed forward unchecked. There were many points in the case where caution would have served justice better than bravado. And in the rush to condemn, a community and a state lost the ability to see clearly. Regardless of the reasons this case was pushed forward, the result was wrong. Today, we need to learn from this and keep it from happening again to anybody.

We have good District Attorneys in North Carolina who are both fair and tough. And we need these forceful, independent prosecutors to put criminals away and protect the public. But we also need checks and balances to protect the innocent. This case shows the enormous consequences of overreaching by a prosecutor. What has been learned is that the internal checks on criminal charges – sworn statements, reasonable grounds, proper suspect photo lineups, accurate and fair discovery – all are critically important." Attachment 2

12. In a further interview Mr. Cooper stated: "When you have a prosecutor who takes advantage of his enormous power and overreaches like this, then yes, it's offensive." Attachment 3

13. These remarks by the Attorney General, made after a three month investigation, coupled with the finding of probable cause by the Grievance Committee of the North Carolina State Bar for multiple violations of ethic rules, and Mr. Nifong's response to the Bar's Complaints, clearly constitute grounds for a finding of probable cause by this court that Mr. Nifong has acted in a manner giving grounds for removal under NCGS §7A-66, an existing mechanism for protecting the public and restoring trust and honor in the criminal justice system of NC Judicial District 14A, Durham County, North Carolina.

14. Mr. Nifong has to this date ignored numerous requests that he resign from office, and has stated through his attorney his intention to serve out his term. Attachment 4

15. By his own misconduct, Mr. Nifong's continuing in office as District Attorney is an absolute impediment to the existence of a trustworthy criminal justice system in Durham County.

16. Every day that the justice system permits Mr. Nifong to remain in his position of great power is an additional reason for the citizens to doubt that real justice exists in Durham County.

17. Mr. Nifong's willful misconduct and conduct prejudicial to the administration of justice which brings the office into disrepute is so evident and transparent at this point that his prompt removal from office can be based on matters in public record. The report Mr. Cooper stated would be released this week will constitute a sufficiently full evidentiary record to go forward with a removal hearing.

18. Mr. Nifong should be suspended immediately. This will permit him to concentrate on his own defense, while permitting the citizens of Durham County to have restored faith in their criminal justice system.

19. The State Bar proceedings concern whether Mr. Nifong committed breaches of the ethics code of the Bar. They may result in various sanctions, ranging from a reprimand to the revocation of his license to practice law. They may be delayed at any time by the filing of additional charges. They have a different purpose than judging whether Mr. Nifong should be removed from office.

20. The concurrent statutory authority of the Bar and the inherent authority of the Courts over the conduct of attorneys is well-established. Here, there is not only inherent authority but a legislative directive to the Court to conduct its own inquiry.

21. NCGS §7A-66 is explicit in its time requirements. The clerk shall "immediately" bring the affidavit to the resident Superior Court judge, who "shall within 30 days" either refer them to another judge or act on them, by dismissal, or by finding that the charges if true constitute grounds for removal, and finding probable cause for believing the charges are true.

22. The inherent power of the courts to do all things necessary and proper for the administration of justice does not include the power to ignore specific statutory directives which require prompt action to protect the citizenry.

23. Mr. Nifong's due process rights would not be impacted in any way by suspension from office.

24. Mr. Nifong's due process rights do not include the right to remain in his position of power and the authority of the state while bringing shame and ridicule on the justice system of Durham County.

Wherefore, the Petitioner prays that this Court suspend District Attorney Michael B. Nifong immediately; that this Court proceed with a hearing to remove him from office, that the Court permit an opportunity to be heard on these issues, and that this Court order such further relief as it deems just and appropriate.

Did Nifong Meet With The Accuser Prior To ID, and Indictments?

In the complaint brought against him by the North Carolina State Bar, rogue prosecutor Mike Nifong is charged with, among other things, making false statements to the Court and opposing counsel. (Misrepresentations and False Statements to Court and Opposing Counsel) The subject of those charges are statements Defendant Nifong made to the Court regarding the DNA evidence he conspired with Dr. Brian Meehan to withhold and the substance of his three documented, but non-memorialized, meetings with Dr. Meehan. Meehan is the director of DNA Security Inc., the private lab Nifong hired to conduct further DNA testing after the NC SBI lab's tests showed no DNA matching any of the 46 lacrosse players in or on Crystal Magnum or her belongings.

In his January response to the Bar complaint, Nifong denied making misrepresentations to the Court. However, at last Friday’s hearing on his motion seeking to dismiss some of the numerous charges, Nifong attorney Dudley Witt admitted to Disciplinary Hearing Committee Chair F. Lane Williamson that Defendant Nifong was made aware of the exonerating DNA evidence in April. Witt’s admission appears to make it impossible for the rogue prosecutor to continue to deny that he made repeated misrepresentations to the Court. Williamson's questioning of Witt also debunked Nifong’s ridiculous assertion that he had not analyzed whether Dr. Meehan's finding DNA from multiple unknown men in the accuser's rape kit was material evidence.

Williamson:

I believe your Answer admits that Mr. Nifong knew from meeting with Dr. Meehan that there were positive results for these other individuals. Is that true?

Witt:

That's correct.

Williamson:

Okay. And there is I think asserted in your Answer to the effect--and I think it's an issue for trial to be heard--which is that Mr. Nifong had not yet focused on--he was looking for evidence to link the players to the accuser's allegations, not--and had not focused on what might be exculpatory.

Witt goes so far as to admit the the State Bar has a valid claim for those misrepresentations.

"They can say that he misrepresented the facts to the court, but they have a misrepresentation claim; that is, they don't have a claim that he was ever ordered by a court to do it."

Witt's admissions appear to belie the denials contained in Defendant Nifong's answer to the State Bar's amended complaint.

247. In response to a question from the Court, Nifong represented that DSI's report encompassed all tests performed by DSI and everything discussed at his meetings with Dr. Meehan in April and May 2006.

247. Defendant incorporates his statements, as more particularly outlined, in the transcript of the hearing before the court on September 22, 2006 in response to the allegations raised in paragraph 247. Any allegations contained in said paragraph which are inconsistent with said transcript are denied.

248. The following exchange occurred immediately thereafter on the Duke Defendants' request for memorializations of Dr. Meehan's oral statements: Judge Smith: "So you represent there are no other statements from Dr. Meehan?" Mr. Nifong: "No other statements. No other statements made to me."

248. Defendant incorporates his statements, as more particularly outlined, in the transcript of the hearing before the court on September 22, 2006 in response to the allegations raised in paragraph 248. Any allegations contained in said paragraph which are inconsistent with said transcript are denied.

249. Nifong's above statements and responses were misrepresentations and false statements of material fact to a tribunal because Nifong had discussed with Dr. Meehan only several months earlier the potentially exculpatory DNA test results and DSI's report did not include these results.

249. The allegations contained in paragraph 249 of plaintiff's Amended Complaint are denied.

While the State Bar has brought charges against Defendant Nifong based on the meetings with Dr. Meehan, his failure to reveal truthfully the substance of those meetings, and his misrepresentations to the Court, the State Bar, and opposing counsel in an effort to disguise the existence of at least one of those meetings and to delay disclosing the substance of them, to date no action has been taken against Defendant Nifong for his similar attempts to withhold the substance of his alternately admitted and denied meetings with false accuser, Crystal Mangum.

At last Wednesday’s press conference, North Carolina Attorney General Roy Cooper fielded questions after declaring that the victims of the Nifong/Mangum Hoax were innocent. Cooper’s answer to one question relayed by phone raises the specter of whether Defendant Nifong made additional misrepresentations to the Court in an effort to prolong his Hoax long enough to ride it to his election victory. In response to whether the district attorney had spoken to the accuser prior to bringing indictments, Cooper stated:

“I don't want to say for sure whether Mr. Nifong talked with her before charges were brought. I know he talked with her at some point, but I don't know the answer to that question. We can find that out for you.

Last Ocober in its article about the just concluded court hearing, the Associated Press reported the astounding news that, despite having brought charges against three suspects, Nifong told the Court he had not yet spoken to the accuser about the Hoax:

The district attorney prosecuting three Duke lacrosse players accused of raping a woman at a team party said during a court hearing Friday that he still hasn't interviewed the accuser about the facts of the case.

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

Nifong made the statement in response to a defense request for any statements the woman has made about the case.

"I understand the answer may not be the answer they want but it's the true answer. That's all I can give them," the prosecutor said after the hourlong hearing.

Defense lawyers said outside court that they found Nifong's statement surprising.

"One of the most interesting things to me of course is Mr. Nifong did admit that he in fact has basically never talked to this woman and has absolutely no idea what her story is, and yet he has chosen to continue to go forward with this case," defense lawyer Joseph Cheshire said.

Nifong said none of his assistants have discussed the case with the woman either and only have spoken with her to monitor her well-being. They have left the investigation of the case to police, he said.

…

Nifong said he met with the accuser and an investigator on April 11, but didn't discuss details of the case because the woman was "too traumatized." Nifong said the woman didn't make eye contact with him and often seemed on the verge of crying. Their discussion centered around how the case would develop, he said.

"She probably did not speak 15 words during the meeting," Nifong said.

Joe Neff's second installment of the News & Observer’s five part series on the Nifong/Mangum Hoax indicates that, contrary to Nifong’s repeated assertions to the Court, he did claim to have spoken with the false accuser prior to bringing indictments and more importantly, prior to her identification of four “attackers” at the corrupt April 4 identification lottery.

“[Defense Attorney Bill] Thomas said Nifong wouldn't listen: "He said that he had personally interviewed her and had spoke with her at length about this case, and that he fully believed every word she said about this incident, and that he knew a lot more about this case than I did, and that he was going to proceed as he saw fit."

“Nifong was smug and self-assured, Thomas said: "I had 27 years of experience with him, and he was looking me in the eye. He said he had interviewed her, he discussed the details of the case, he believed her and that my view of her as perhaps being a call girl working for an escort service, running around making things up for financial gain, was absolutely false. ... He went on to say what a wonderful person she was. He said she was fully believable, she was intelligent, articulate ... and telling a convincing story about what happened."

Nifong’s statements to Thomas confirm the assertions he made to the Friends of Durham political action committee while seeking their political endorsement before the general election and to the Court in a motion seeking payment for testing.

To Friends of Durham:
Today, we learn from David Smith, chairman of Friends of Durham, by way of the Herald Sun’s William West, that Mr. Nifong has indeed interviewed the accuser.

"And we asked Mike Nifong, and one of his comments was that he's the only one that's interviewed this victim," [chairman of Friends of Durham, David] Smith said. "And he feels confident in his case."

To the Court:

In a motion filed on September 20, District Attorney Mike Nifong states that the Duke Hoax accuser has the “ability to recall in great detail the events prior to and during” her alleged assault. Considering that nearly all of the details she has provided in her police statements, her statements to medical personnel, her “identification” sessions, and her News & Observer interview have been contradicted by her own words, forensic evidence and the statements of other witnesses, it is difficult to imagine on what basis Nifong has concluded that she has the “ability to recall in great detail.”

If DA Nifong is to be believed, neither he, nor anyone else from his office, has asked the accuser to relate her recollections, therefore, the basis for Nifong’s affirmation of the accuser’s great "memory" cannot be his personal evaluation of her sincerity, clarity or credibility with regard to these “details.” It seems absurd that Mr. Nifong would vouch for her “ability to recall in great detail” without ever having heard those details recalled firsthand. His claim also appears to be contradicted by his continual willingness to offer his own contradictions of many of those "details" supposedly recalled.

Defendant Nifong’s statements to Smith, Thomas, and to the Court clearly contradict other statements he made to the Court and opposing counsel. Both sets of opposing assertions cannot be true. Either the rogue prosecutor lied to the Court and opposing counsel when asserting that he had not interviewed the accuser, or he lied to opposing counsel when he told Attorney Thomas that he had interviewed the accuser at length about the case and found her credible, to the court when he stated definitively that she could recall the event that never occurred in great detail, and to the local PAC when stating that he had interviewed the false accuser. While none of these statements were included in the State Bar’s complaint, it would appear that one set or the other merits consideration.

We look forward to NC Attorney General Roy Cooper following through on his offer to find out whether Nifong discussed the case with the accuser prior to indicting three innocent men. For the sake of both the State Bar’s evaluation of Defendant Nifong’s intent and the State's evaluation of possible obstruction of justice charges, the important question of whether Nifong discussed the Hoax with his co-Hoaxer prior to her false identifications and his contempible rush to indict innocents must be answered.

Text of Cornacchia Letter to Easley and Cooper

Dear Governor Easley and General Cooper:

I represent Collin Finnerty and write you on his behalf with several requests in connection with the so-called "Duke Lacrosse Case" wherein General Cooper, after an extensive investigation, found that he and his two former teammates were "innocent" of the charges filed in Superior Court in Durham County and, furthermore, that no crimes ever occurred in the first place.

My first request is that you both publicly call on Michael B. Nifong. the sitting Durham County District Attorney, to resign immediately from office. Governor Easley, you have publicly stated, when you were in New York recently, that selecting Mr. Nifong was "the worst appointment of [your] career." Furthermore, you also publicly stated at that time that Mr. Nifong apparently lied when he represented to you that he would not seek permanent office as District Attorney which was a condition of your interim appointment. Finally, General Cooper branded Mr. Nifong as a "rogue" and "unchecked" prosecutor because he had three innocent, young men, arrested, indicted and prosecuted for crimes that General Cooper found did not occur. Finally, and incredibly, Mr. Nifong continues in office as the chief law enforcement officer in Durham County, making life-altering decisions about who should be the subject of prosecution and handling the most sensitive and important cases. Mr. Nifong has not done the honorable thing and tendered his resignation. He may do so if you both publicly and unequivocally call for that resignation.

My second request is that, if Mr. Nifong refuses to take the honorable and responsible step of voluntarily tendering his resignation, you both join in the application for his removal pursuant to North Carolina General Statute ("NCGS") Section 7A-66, now pending in Durham County Superior Court before the Honorable Orlando Hudson. Your moral suasion and the prestige of your offices, as well as the resources that you can bring to bear, will assist the private litigant who has brought this petition and ensure the appropriate effort and resources are dedicated to this serious matter.

The third request is that a special prosecutor be appointed, either an attorney in private practice of the highest caliber and integrity, or members of General Cooper's Special Prosecution Unit who demonstrated their professionalism so well in their recent investigation, Once appointed, a special prosecutor can seek court approval for the convening of an "investigative grand jury" pursuant to NCGS Section 15-623, There is ample predicate for this. After all, General Cooper has found that Mr. Nifong and the Durham Police Department arrested and prosecuted three innocent, young men for crimes that did not occur. With the impaneling of such a grand jury, a special prosecutor can subpoena witnesses and documents and conduct an investigation under grand jury secrecy to determine whether there have violations of criminal statues including, but not limited to, possible violations of North Carolina's official "misbehavior in office" statutes (NCGS Sections 14-230 and 23 i) and false reports to law enforcement agencies ( NCGS Section 14-225). Those whose roles must be examined include Mr. Nifong, the Chief investigator for his office, Lindell Wilson, Sergeant Mark Gottlieb, Investigators Benjamin Himan and Michele Soucci, their Durham Police Department commanding officers and Brian Meehan of the DNA Security Lab who admitted, under oath, that he agreed with Mr. Nifong to withhold what Mr. Meehan knew to be exculpatory evidence and submit a false DNA report.

Let me be very clear, I do not, in any way, suggest by naming these individuals that they committed crimes or engaged in misconduct of any type. That determination, if made, would be up to a special prosecutor, a judge and jury. These individuals are entitled to the presumption of innocence and should not be prejudged. We do not do so by this request but only ask for a full and impartial inquiry.

It has been said that the institution of ethics charges against Mr. Nifong is sufficient to address the situation. This is not so. This forum only will determine if the codes governing the conduct of attorneys, generally, and district attorneys, specifically, have been broken by only Mr. Nifong. It will not, and cannot, address the conduct of the members of Mr. Nifong's office, the officers of the Durham Police Department and others such as Mr. Meehan. Others say to wait to see what the Ethics Commission determines but their action is limited and will not address the conduct of the participants in what, based on General Cooper's investigation arid public statements, can only be characterized as a "frame-up" of three young men whose parents had sent them to your state for an education. The view that the institution of a criminal investigation will somehow prejudice the Ethics Commission in its inquiry is absurd and an insult to the three members of the body hearing this matter.

My final request is that an investigation be commenced into the continued licensing of Mr. Meehan to operate a DNA laboratory in North Carolina . Once again, we do not prejudge the result of such an inquiry but there certainly exists ample predicate for such an investigation, given Mr. Meehan's statements under oath in Durham County Superior Court concerning his complicity in the withholding of DNA evidence.

We respectfully submit that it is necessary for you to put these steps into action lest it be known, or even suspected, that a person in North Carolina is immune from proper scrutiny of their actions because of their official position. The efforts of North Carolina to respond to the tragedy and injustice of the Duke Lacrosse Case have been demonstrated by the institution of the ethics inquiry of Mr. Nifong and the courageous finding of innocence of my client and his former teammates by General Cooper. The actions outlined in this letter are necessary and appropriate to continue these efforts.

My client, his family and I stand ready to assist you in any way to implement these requests.

Respectfully yours,

Michael Cornacchia

Daily Tar Heel: “The System Worked Just Fine”

Three hundred and ninety-five days, three million dollars in legal fees, and the incalculable pain of three families later, the University of North Carolina’s student newspaper, The Daily Tar Heel, airily declares that the Nifong/Mangum Hoax demonstrates “the system worked just fine and doesn‘t need to be changed.” Arguing that no additional legislation is needed to prevent rogue prosecutors like UNC alum Mike Nifong from blatantly railroading innocent people into prison for thirty years, the Daily Tar Heel cites the North Carolina State Bar’s unprecedented intervention as reason to believe that “the system worked just fine and doesn‘t need to be changed.”

“With the Duke lacrosse case finally closed, many questions still remain about how the case was handled. Perhaps the most important of these is, "How can similar situations be avoided in the future?"

“One proposal, suggested Wednesday by N.C. Attorney General Roy Cooper, would allow the N.C. Supreme Court to remove an errant prosecutor.

“Although Cooper's proposal was made with good intentions, it would be wrong to give the N.C. Supreme Court the power to remove prosecutors.

“Cooper's proposal was made in response to the problematic handling of the Duke lacrosse case by Durham County District Attorney Michael Nifong.

“Throughout the investigation, Nifong's actions were condemned with allegations of lacking sufficient evidence, having questionable motives and withholding crucial DNA evidence from the defense.

“The result of Nifong's mistakes was that the N.C. Bar Association filed ethics charges against him Dec. 28. And on Jan. 12, Nifong, feeling the heat, stepped down as prosecutor for the case.

“The unofficial system for disciplining prosecutors worked in this case, making the need for a codified system unnecessary.

“Under N.C. General Statute 84-23, the N.C. Bar is given the authority to "regulate the professional conduct of licensed lawyers" and "take actions that are necessary to ensure the competence of lawyers." This regulation is exactly what took effect in the Duke lacrosse case.

“Many accuse Nifong of getting caught up in the limelight of a re-election campaign and taking improper actions to rush the prosecution of the case.

“So the N.C. Bar stepped in and charged Nifong with making improper pretrial public statements, withholding DNA evidence and making false statements in court and to the N.C. Bar. These charges could result in Nifong's disbarment.

“Many people wanted Nifong removed from the case faster, but it is unreasonable to think that the N.C. Supreme Court, or any other component of the justice system, would have acted faster than the N.C. Bar did.

“It also would be a bad idea to have the N.C. Supreme Court interfering with a case that it might need to make judgment on later if the case is appealed.

“Nifong botched the case, but his mistakes were noticed and action was taken by the N.C. Bar. In that respect, the system worked just fine and doesn't need to be changed.”

Sadly, the Daily Tar Heel’s editorial fails to recognize that the intervention by the North Carolina State Bar was unprecedented and, as such, gives little assurance similar situations would be prevented in the future by the same extreme actions. Further, despite the filing of the State Bar’s voluminous complaint against rogue prosecutor Nifong, the system that “worked just fine and doesn‘t need to be changed” was dependant on Defendant Nifong finally choosing to recuse himself. The suggestion that the system worked also ignores and demeans the precious price paid by the innocents preyed upon by the rogue prosecutor.

Finally, the UNC newspaper’s argument fails to recognize the State Bar’s standard policy to defer “to the concurrent jurisdiction of the court to rule on questions of professional conduct” in matters regarding the disqualification of counsel. In the Nifong/Mangum Hoax, a motion seeking the removal of the district attorney was filed many months prior to the State Bar’s eventual intervention and was based on many of the same instances of professional misconduct ultimately cited by the Bar in its initial complaint against Defendant Nifong. Filed on May, the motion went unheard and was eventually withdrawn in December. During the many months the May 1 recusal motion went unheard, the State Bar methodically conducted an investigation which began with the opening of a file on Nifong in March 2006 and concluded with the filing of an official complaint in late December.

Championing the so-called speed with which the Bar intervened, by pointing to the December 28 filing of the complaint and Nifong’s January 12 decision to remove himself from the case, distorts the actual length of time it took for the State Bar to intervene and the suffering the innocent victims of the Nifong/Mangum Hoax endured in the interim. It's difficult to accept the argument that the State Bar’s lengthy grievance and discipline procedure was intended to be or should be the appropriate vehicle for removing a rogue prosecutor from a blatantly malicious prosecution. Imagine yourself in the place of the innocent victim of a rogue prosecutor willing to imprison you for thirty years in exchange for a larger pension. And now imagine that your avenue of relief depends on the mere hope of an unprecedented State Bar intervention following nine months of investigation.

Perhaps most disturbing, the motion for the removal of Defendant Nifong from his hijacked Hoax currently appears to be the official means of removing a rogue prosecutor. Yet, such a motion filed last May went unheard. And if ever heard, it would have been decided by the same local judges who failed to cite Defendant Nifong for his in-court misrepresentations and his other misconduct, despite their concurrent jurisdiction with the State Bar on questions of professional conduct. Adding to our reluctance to support a call for leaving the responsibility of removing a rogue prosecutor in the hands of either a State Bar that has no immediate nor direct means of doing so or a local court that has demonstrated a reluctance to act is the willingness of Superior Court Judge Orlando Hudson to defy statutory directives requiring him to act on the pending 7A-66 affidavit before him. If the State Bar defers in every other case to the Court’s concurrent jurisdiction and if the local Court defers to the locally elected District Attorney, as has been the case throughout the Nifong/Mangum Hoax, it becomes impossible to accept the suggestion that the State's response to the Nifong/Mangum Hoax has demonstrated that “the system worked just fine and doesn‘t need to be changed.”

NC Attorney General Roy Cooper’s recent proposal to allow Supreme Court intervention may or may not be the ideal solution. Yet, the Nifong/Mangum Hoax has shown the extreme toll exacted from Nifong’s innocent victims, the reluctance of the local court to sanction or remove the DA despite his obvious misrepresentations and other misconduct, and the willingness of Superior Court Judge Hudson to defy statutory directives. Each of which inequivocably demonstrate that change in the form of additional oversight of elected district attorneys is necessary to mend a system that worked quite the opposite of "just fine."

Lunatic Fringe Meets To Accuse Cooper of Cover Up, Raise Funds For False Accuser

The Snooze Room, in a effort to continue it's "fair and balanced" coverage of the Nifong/Mangum Hoax features yesterday's meeting of the "The Nifong-Must-Have-Something Club" at the Know Bookstore and Cultural Center. Led by hater-in-chief, Victoria Peterson, who served as Citizens for Mike Nifong co-chair and organizer of D.A.M.N. (District Attorney Mike Nifong) Appreciation Week, a group of fifteen Hoax supporters met to express their inability to come to terms with the exoneration of the innocent victims of the Nifong/Mangum Hoax. Citing the failure of State Attorney General Roy Cooper to charge the false accuser, one member of the group declared Cooper guilty of a cover up. Others called Cooper's decision a "scandal" that "circumvented the justice system." Victoria Peterson chastised Durham's black community for failing to support the false accuser. Apparently taking Ms. Peterson's suggestion literally, community activist Theresa El-Amin began efforts to raise funds to provide for the false accuser's food and rent.

Brianne Dopart, The Snooze Room

State Attorney General Roy Cooper "wrote off a whole section of Durham" last week when he declared three former Duke University lacrosse players "innocent" of accusations they sexually assaulted and kidnapped a woman, community activist Theresa El-Amin told a group of about 15 supporters of their discredited accuser Monday.

At a meeting at The Know Bookstore And Cultural Center at 2520 Fayetteville St., El-Amin and fellow activists Victoria Peterson and Lavonia Allison aired their opposition to Cooper's vindication of the former Duke players.

Peterson, an ardent supporter of the exonerated players' accuser, said Cooper circumvented the justice system when he declared the former defendants innocent on all counts.

"I don't really care what you think, if you think that the girl was lying or telling the truth, but what happened to the judicial system we have in this country where the jury is the only one who can say if someone is innocent?" Peterson said. "If he thought there wasn't enough evidence, he could dismiss the charges, but this man [Cooper] took it a step further, he said 'We believe these three are innocent.' "

"People on death row get exonerated [all the time] and did you ever hear an attorney general come out and say [the exonerated individual] is innocent? It's a scandal," El-Amin said.

Community member Beverly Jenkins said the fact that the accuser had not been charged with making false accusations proves Cooper has something to hide.

Activist Dannette Sharpley, who is working with El-Amin to plan an April 28 march against sexual violence, said the charges were dismissed because society undervalues women of color and women who work as exotic dancers and strippers.

"To them, this woman was unrape-able. [To them] she asked for it. [To them] she doesn't dignify the process. That's why they're 'innocent,' " Sharpley said.

Peterson said she felt the African American community in Durham failed to rally around the accuser because the woman was employed as a stripper.

El-Amin, who said she wanted to get Durham's black churches to offer the accuser financial support, got about five people to agree to help her provide the accuser with food and rent money. She added that she was not in contact with the victim but hoped she would be soon.

Joan Foster provides additional coverage of the Twilight Zone:

Late Last Night at the Know Bookstore...