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.

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"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.

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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."

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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."

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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.

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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.”

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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.

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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

N&O Calls For Accounting of DPD Lapses

In an editorial today, the News & Observer shines the spotlight onto the Durham Police Department's role in the Nifong/Mangum Hoax. Questioning the role of the DPD in enabling the Hoax, the N&O demands a voluntary accounting of the department's professional lapses by Chief Steve Chalmers. While the N&O fails to cite the DPD/Crimestoppers "horrific crime" flyer, the DPD's false public statements that fueled the 911 Hoax, and the Wall of Silence Hoax, the editorial does question the corrupt lineup lottery, Sgt. Mark Gottlieb's homegrown notes, and the department's acquiescence to Nifong's "pressures."

Just the facts

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.

Separately, The New York Times reported last year that Gottlieb acknowledged taking few handwritten notes for what is considered a critical part of a criminal investigation, the so-called chronological report. Instead, he relied mostly on his memory and other officers' notes.

Nifong at a later point took over leadership of the investigation from the Durham police. By necessity, the police department and district attorney's office work together on criminal cases. But each has its distinct mission, and must hew to it if justice is to be properly pursued. It's possible that department brass felt, accurately, that the case was a political hot potato. But they shouldn't have let the DA's office do the department's job.

Had Durham officers insisted on following well-established policies, and resisted Nifong's pressures, the case might have been shortcircuited and the ordeal might not have dragged on as long as it did. As it is, Nifong is having to defend his own performance in disciplinary proceedings before the State Bar, and his law license is at risk.

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.

To date, DPD Chief Chalmers has been nearly entirely silent on the department's complicity in the Nifong/Mangum Hoax. In July, however, Chalmers did suggest, in a rare public sighting, that certain, unspecified issues had been addressed internally. Despite his suggestion, Chalmers, at the time, refused to elaborate while expressing a duty to protect the "integrity" of the investigation and promising to provide "evidence" to "bring about a conviction."

"Everything that we've seen written in the papers and heard, certainly we've addressed that internally, and we're prepared to address it in court," he said.

The chief says that he anticipated criticism would come with the high-profile case.

"The main thing that we're trying to do is protect the integrity of the investigation, to present a case that is not biased or has not been compromised," Chalmers said. "Our responsibility is to investigate the case, to protect the integrity of the case, and when the time comes, provide the evidence that we've gathered in a court of law to bring about a conviction." WTVD

While it remains unclear how one protects the integrity of a law enforcement Hoax, we look forward to Chief Chalmers response to the News & Observer. Hopefully, it will exceed his July response to a similar suggestion:

"And I didn't think that that could be done, by actually discussing going tit-for-tat with the media." WTVD

While an internal accounting of DPD's role in the Hoax has merit, other's have asked for an outside investigation into possible criminal conduct within the department. The most recent demand for an external investigation came from attorney Michael Cornacchia in a letter to Governor Mike Easley and Attorney General Roy Cooper. Cornacchia wrote:

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.

...


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.

At the recent State Bar hearing on Defendant Nifong's failed motion to dismiss, the State Bar also noted interest in learning more about the Durham Police Department's role in the Hoax. At the hearing, DHC Chair F. Lane Williamson noted:

And then, suffusing all of that is, what was his intent, which of course, we can only draw from the circumstances. As you know, you can't usually have direct evidence of intent. But, you know, that's going to be an issue. So we're going to need to hear, of course, from Mr. Nifong. We're going to need to hear, I assume, from Dr. Meehan and we're going to need to hear from, I believe it was, members of the Durham Police Department that were in meetings there, and whoever else may shed light on those issues.

CLE and Attorney C

The National Advocacy Center (NAC), located at the University of South Carolina, is operated by the Department of Justice, Executive Office for United States Attorneys. The facility, designed to offer, in part, a "stimulating environment for legal training" of federal, state, and local prosecutors and litigators, expects more than 10,000 attorneys to train there annually. Three training organizations, the Office of Legal Education of the Executive Office for U.S. Attorneys, the National Bankruptcy Training Institute of the Executive Office for U.S. Trustees, and the National District Attorneys Association are located at the NAC

As part of its Continuing Legal Education (CLE) program, the Office of Legal Education has a Videotape Lending Library of tapes which are available for CLE credits in all states, except Delaware. Included in the OLE library is a two hour ethics training video entitled “Ethics Show with Mike Levy.” In his video seminar, Levy, Chief of the Computer Crime Section, reviews the Rules of Professional Conduct and addresses several applicable statutes, rules, regulations and cases, with particular attention to what the OLE describes as “the thorniest recurring ethical issues: Rule 3.3 on candor toward the tribunal; Rule 3.6 on publicity; Rule 3.8 on the special responsibilities of a prosecutor; and Rule 4.2 on contacts with represented parties.”

The entire lecture, produced by the DOJ in 2002, is long overdue for a formal showing in the Durham County District Attorney’s Office. However, one passage holds particular interest for those who took note of NC State Bar DHC Chair F. Lane Williamson’s recent reference to a seemingly obscure Colorado Supreme Court decision from May of 2002: In the Matter of Attorney C. At the April 13 DHC hearing on Nifong's motion to dismiss some of the ethical charges against him, Williamson announced his intention, absent any better suggestions, to employ the standards set forth by the Colorado Supreme Court as his guide in determining whether Defendant Nifong had violated Rule 3.8(d) which mandates, according to the model rule, that a prosecutor shall:

“make timely disclosure to the defense of all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense, and, in connection with sentencing, disclose to the defense and to the tribunal all unprivileged mitigating information known to the prosecutor, except when the prosecutor is relieved of this responsibility by a protective order of the tribunal.”

In part, the Colorado Supreme Court based its ruling on the American Bar Association model rul above and the ABA's Standards for Criminal Justice. The Colorado Supreme Court quotes the ABA standards as follows:

The ABA Standards for Criminal Justice: Prosecution Function and Defense Function 3-3.11(a) (3d ed. 1993) provide that:

A prosecutor should not intentionally fail to make timely disclosure to the defense, at the earliest feasible opportunity, of the existence of all evidence or information which tends to negate the guilt of the accused or mitigate the offense charged or which would tend to reduce the punishment of the accused.

Per the Colorado case, Williamson noted that "timely" disclosure could rightly be defined as meaning prior to the next critical stage of the case, rather than at a “reasonable time" before trial as Defendant Nifong argued. To that end, the Colorado ruling reads:

"We do not accept the argument that the evidence need only be disclosed in advance of a proceeding at which that evidence would be specifically determinative. Rather, we conclude that if evidence is material to the outcome of the trial, then the prosecutor must disclose that evidence in advance of the next critical stage of the proceeding – whether the evidence would particularly affect that hearing or not."

If the video by Mike Levy featured in the program is any guide, the Continuing Legal Education program offered by the Office of Legal Education uses exactly that Colorado standard and features the same case proposed by Williamson as its guide while comparing the ethics rules to the lower standard of due process.

A handout which accompanies the training video is a reminder of the April 13 DHC hearing:


Had attorneys Dudley Witt, David Freedman, and Mike Nifong viewed this training session prior to the hearing, they might have saved themselves some public embarrassment caused by their "medieval" argument. Other relevant portions of the ethics seminar would have served Defendant Nifong well had he viewed them prior to March 2006:

Perverting the Law, Just Another Day on the Bench

In ruling on Spruill v. Lake Phelps Volunteer Fire Department, Inc., the North Carolina Supreme Court stated:

“A court cannot ignore clear and precise statutory language. Judicial interpretation allows a court to resolve statutory ambiguities, not create them.”

Repeatedly, the United States Supreme Court has affirmed that “when the terms of a statute are unambiguous, judicial inquiry is complete” and “when a rule (or a statute) is clear, a court cannot distort its meaning.”

Yesterday, for the second time in two months, Durham County Superior Court Judge Orlando Hudson has decided that he has power that both the North Carolina and United State Supreme Courts do not. Placing himself above the law, Judge Hudson continues to ignore the clear and precise statutory language of NCGS 7A-66.

WRAL reported Judge Hudson's latest decision as follows:

“For the second time in two months, a local resident has filed court papers seeking the removal of Durham County District Attorney Mike Nifong from office.

"But a judge overseeing the case said he would again deny the motion.

“Elizabeth Brewer filed a civil complaint against Nifong in February, alleging willful misconduct and conduct prejudicial to the administration of justice that brings the office into disrepute. The charges stemmed from his handling of the investigation of sexual assault allegations against members of the Duke University lacrosse team.

“Superior Court Judge Orlando Hudson delayed any action on the complaint until an ethics case filed by the North Carolina State Bar against Nifong for his handling of the Duke lacrosse case is completed.

“Hudson told WRAL on Monday he would deny Brewer's motion again, because ruling on it would deny Nifong's right to due process before the State Bar.”

In denying the motion asking him to follow the unambiguous statutory directives of NCGS 7A-66, Judge Hudson again defies the will of the State Legislature and ignores the precedent set by higher courts.

The language of NCGS 7A-66 is clear:

“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.”

When faced with an appeal on a previous 7A-66 ruling, the North Carolina Supreme Court demonstrated the clear and precise language of the statute when it outlined the precise statutory directive as follows:

“It is true that a district attorney removal proceeding under N.C.G.S. § 7A-66 is an inquiry; it is neither a civil suit nor a criminal prosecution. It is commenced by the filing of one or more sworn affidavits with the clerk of superior court of the county where the district attorney resides. N.C.G.S. § 7A-66. The matter is then brought to the attention of the senior regular resident superior court judge who within thirty days shall act on the charges or refer them to another superior court judge to be acted upon.”

In rationalizing his initial decision to delay acting on the affidavit in February, Judge Hudson distorted the meaning of the word “act” to include the “act” of not acting. The News & Observer described Hudson's perversion of the statute as follows:

“The meaning of 'act'

“The disagreement may be over the definition of the word "act."

“Brewer and her attorney believe that under the law, Hudson has to actually consider the petition within a month. Hudson said Monday that by postponing the petition, he has acted on it.”

Citing Scales v. United States, the US Supreme Court in Aptheker v. Secretary of State stated:

"It must be remembered that "[a]lthough this Court will often strain to construe legislation so as to save it against constitutional attack, it must not and will not carry this to the point of perverting the purpose of a statute . . ." or judicially rewriting it."

In Durham, however, it must be remembered that, although the Supreme Courts of North Carolina and the United States must not and will not strain to the point of perverting or judicially rewriting statutes, the Superior Court will often strain to construe legislation so as to save a rogue prosecutor a few more months in office.

Campus Echo Stands By Hate Piece

In response to criticism of the decision to publish the violent musings of Solomon Burnette, the editor of the Campus Echo, student newspaper of North Carolina Central University, has printed a disclaimer suggesting that the opinions expressed by the twenty-seven year old University of North Carolina Association of Student Governments Vice Chair do not reflect the views of the newspaper or the University. Rather, the editor stands by the decision to publish the overtly racist hate speech on the basis of First Amendment rights.

Editor's Note:
The opinions expressed below by Mr. Burnette in no way expresses the views of the Campus Echo, its editors, the adviser, or N.C. Central University. They are solely the opinions of the writer.

The Campus Echo has a policy of accepting opinions submissions from NCCU students, faculty, staff and community members and respects their freedom of expression according to the First Amendment.

Prophetically, Eugene Volokh addressed student's First Amendment rights and the fallacy that those rights extend to attempts to incite violence in a recent post at The Volokh Conspiracy.

Public universities are bound by the First Amendment. Thus, both public university students and public university teachers are entitled to some protection from discipline, firing, and other retaliation for their speech. In some areas, this protection is pretty clear and pretty broad. In others, it’s relatively vague. Student speech outside the classroom and outside academic assignments. Most clearly, students generally may not be expelled, suspended, or otherwise disciplined for what they say in student newspapers, at demonstrations, in out-of-class conversations, and the like. The Supreme Court made this clear in Papish v. Board of Curators, 410 U.S. 667 (1973), and Healy v. James, 408 U.S. 169 (1972). Lower courts have followed suit, especially in the late 1980s and 1990s cases that have struck down student speech codes. See, e.g., Dambrot v. Central Michigan Univ., 55 F.3d1177 (6th Cir. 1995); Iota Xi v. George Mason Univ., 993 F.2d 386 (4th Cir. 1993); UWM Post v. Univ. of Wisc., 74 F. Supp. 1163 (E.D. Wis. 1991); Doe v. Univ. of Mich., 721 F. Supp. 852 (E.D. Mich. 1989).

Of course, student speech may be restricted if it falls within the narrow categories of speech that’s generally unprotected (e.g., threats of violence, personal face-to-face insults likely to cause a fight, or intentional incitement of imminent and likely unlawful conduct).

It's difficult to imagine that the call for physical violence by Burnette, whose criminal history includes an arrest for punching his mother in the face and convictions on drug, armed robbery of two Duke students, and probation violation charges, would not fall under the narrow categories of unprotected free speech.

By calling for "Death to all rapists" in response to the exoneration of the Nifong/Mangum Hoax defendants, Mr. Burnette clearly exceeds the bounds of free speech with his call for black men, women, and children to fight physically against the white race.

The only deterrent to these legally, socially and economically validated supremacist actions is the fear of physical retribution.

Black men, stand up. Black women, stand up. Black children, stand up. We have been at war here with these same white people for 500 years.

The time to fight, whether intellectually, artistically or physically, has always been now.

It should be noted that today's decision to merely print a disclaimer, rather than pull the call for violence, follows expressions of concern addressed with the campus police and mental health departments in light of the timing relative to the Virginia Tech massacre.

In a note to the NCCU Mental Health Department, one observer wrote:

Dear Dr. Moore,

As a mental health worker in Houston I was alittle taken aback by Mr. Solomon Burnette's op-ed piece in the Echo. In light of Virginia Tech and your own warnings to students (see Echo, NCCU assures students), I would think it prudent to at least check in with Mr. Burnette and see if he is OK. I say this also understanding that he does have some violence in his past.

Thank you

A visiting professor expressed his fear to NCCU Chief of Police, Glenda Beard:

"Dear Chief Beard,

I am the director of a non-profit here in Durham, and I have been a frequent guest professor on your campus. My organization and NCCU are partners in several important projects in science and Digital Libraries. We also have hired several NCCU students as interns.

Given the recent violence at Virginia Tech, and the call to be vigilant, perhaps, and knowing how often I am on your campus, someone sent me a copy of this opinion piece from your campus newspaper, with a note saying I should be careful:

http://www.nccu.edu/campus/echo/o-burnette.html

I am concerned this person could be trying to incite violence in Durham, or at NCCU against visitors to your campus.

What do you advise since I am coming on Friday as a guest panelist for the Digital Library meeting?"

One commentator to this blog likened the Campus Echo's decision to that of NBC's in airing the hate manifesto of Seung-Hui Cho.

This guy is seriously disturbed. It was irresponsible to publish his intentionally inflammatory remarks. Giving him a platform to spew his hatred and encourage physical violence is as bad as NBC airing the VT killer's video. Where has responsible journalism gone?

Given the timing, comparisons to Virginia Tech, fair or not, are unavoidable and add another level to the disappointment in the Campus Echo's decisions to publish the work of violence in the first place and to stand by the message of hate after concerns and fears were raised to campus authorities.

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.

Nifong: Intentionally avoiding pursuit of evidence

Much has been made of the conspiracy between Durham County’s rogue District Attorney, Mike Nifong, and DNA Security, Inc. lab director, Dr. Brian Meehan, to withhold exonerating DNA evidence from the former defendants in the Nifong/Mangum Hoax. The conspiracy to withhold evidence and the efforts to disguise the conspiracy are the subject of one hundred and six paragraphs of the State Bar’s amended complaint against Defendant Nifong. Ultimately, revelation of the conspiracy led to the State Bar’s unprecedented intervention in the Hoax, a public condemnation by the North Carolina Conference of District Attorneys confirming Defendant Nifong’s status as pariah among his elected peers, Defendant Nifong’s forced recusal from his hijacked Hoax, and the eventual total exoneration of the innocent defendants by NC Attorney General Roy Cooper.

For many, the public disclosure of the Nifong/Meehan conspiracy crystallized the conclusion that Defendant Nifong’s egregious misconduct was as abhorrent as the Hoax defense team, the blogs, selected segments of the old media, and many other commentators had suggested for nearly a year prior to the December 15 hearing. F. Lane Williamson, chair of the NC State Bar Disciplinary Hearing Commission charged with determining the fate of Defendant Nifong’s law license, perhaps expressed that startling Perry Mason moment best at Friday’s hearing on Nifong’s motion to dismiss.

F. Lane Williamson:

“We're talking about DNA testing that was done. And, of course, everybody--you know, whether it's justified or not--puts a lot of credence in that. And it's one thing to have--well, as a layman, I understand when the person who does the testing tells me, "I didn't find anything on these lacrosse players."

I also understand as a layperson if he tells me, "But we found DNA from other men." I also understand as a lawyer that it's one thing--you know, using the old thing--absence of evidence is not evidence of absence. But here, knowing that there's testing that has found DNA from other people, that is evidence of absence. And I don't need to be--I don't need to understand anything about the science. That's all I need to understand.”

While the misconduct, described as “offensive” by NC Attorney General Roy Cooper, of rogue prosecutor Mike Nifong is readily apparent in the context of the DNA conspiracy, the disgraced district attorney’s unethical refusal to view additional exculpatory evidence offered by the defense attorneys further demonstrates that Nifong's intention was never to seek justice, but rather to prosecute regardless of innocence.

In its Criminal Justice Section Standards for prosecutors, the American Bar Association describes a prosecutor’s duty to pursue evidence of both innocence and guilt in service of justice as follows:

Standard 3-3.11 Disclosure of Evidence by the Prosecutor

(c) A prosecutor should not intentionally avoid pursuit of evidence because he or she believes it will damage the prosecution's case or aid the accused.

Previously, the ABA’s Standard 3-3.11(c) had read:

"A prosecutor may not properly refrain from investigation in order to avoid coming into possession of evidence that may weaken the prosecution's case, independent of whether disclosure to the defense may be required. The duty of the prosecutor is to acquire all the relevant evidence without regard to its impact on the success of the prosecution."

The ABA Standards take the ethical responsibilities one step further by demanding that no prosecutor hide evidence of innocence from a grand jury:

Standard 3-3.6 Quality and Scope of Evidence Before Grand Jury

(a) A prosecutor should only make statements or arguments to the grand jury and only present evidence to the grand jury which the prosecutor believes is appropriate or authorized under law for presentation to the grand jury. In appropriate cases, the prosecutor may present witnesses to summarize admissible evidence available to the prosecutor which the prosecutor believes he or she will be able to present at trial. The prosecutor should also inform the grand jurors that they have the right to hear any available witnesses, including eyewitnesses.

(b) No prosecutor should knowingly fail to disclose to the grand jury evidence which tends to negate guilt or mitigate the offense.

The North Carolina State Bar’s Revised Rules of Professional Conduct attaches the following comment to Rule 3.8:

With respect to evidence and witnesses, the prosecutor has responsibilities different from those of a lawyer in private practice; the prosecutor should make timely disclosure to the defense of available evidence known to him or her that tends to negate the guilt of the accused, mitigate the degree of the offense, or reduce the punishment. Further, a prosecutor should not intentionally avoid pursuit of evidence merely because he or she believes it will damage the prosecutor's case or aid the accused.

Clearly, Defendant Nifong had, at a minimum, an obligation to not avoid exculpatory evidence. For nearly a year prior to his thinly sliced apology to the wronged survivors of his hijacked Hoax, Nifong repeatedly showed an unwillingness to uphold his ethical responsibility to not hide from evidence that stood in the way of his political ambitions by hindering his Hoax.

The first recorded instance of Defendant Nifong’s refusal to meet with defense attorneys occurred in March 2006.

"Cheshire wrote in his letter that on March 29, he had his paralegal, Moira Bitzenhofer, call Nifong's office to set up a meeting so the defense lawyer could talk to the prosecutor either in person or on the phone. Nifong, through his assistant, Sheila Eason, declined to talk with Cheshire." N&O

"Stunned by Nifong's increasingly strident public statements, defense lawyer Joseph B. Cheshire V tried to talk to the prosecutor last spring.

"Nifong "is not going to talk with any attorneys while there have been no charges filed, and ... if Joe Cheshire feels that his client should be charged, then he should tell the police department," Nifong's paralegal responded." N&O

In April Defendant Nifong continued to refuse to view or consider evidence of innocence prior to indicting innocent men for a crime that did not occur.

April 4

"Thomas asked Nifong to investigate fully before bringing charges. He offered to share facts and evidence with the prosecutor.

"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." N&O

April 13

"Thomas, meanwhile, was putting together a delegation to meet with Nifong. He chose the other lawyers he thought Nifong would most likely listen to: James D. "Butch" Williams Jr., a highly regarded Durham defense lawyer; and Wade Smith of Raleigh, the cordial dean of the North Carolina defense bar.

"Smith did most of the talking. "Please slow down," he said to Nifong.

"Smith asked for a dialogue and said the defense lawyers would open their files and share with Nifong all the evidence they had gathered. They hoped he would see that the charges were false.
Nifong put his hands over his ears, Smith said. So he let Nifong speak.

'I know a lot more'

"Gentlemen, I know a lot more about this case than any of you do, and I'm going to proceed as I see fit."

"The meeting had lasted less than 10 minutes. As the lawyers stood to leave, Nifong grew visibly angry and launched into a tirade: "And by the way, you can tell that [expletive] Cheshire that ..."

"Williams cut Nifong off: "Don't even go there. We don't want to hear about Joe."

"As the lawyers walked down the hallway to the elevators, they shook their heads. There was no talking with Nifong. He was going to obtain indictments, and nothing would stop him." N& O

April 17

"Nifong rebuffed efforts by three defense lawyers to present him with exculpatory evidence before he went to the grand jury to get the players indicted. On the day of the indictment, he refused to see Kirk Osborn, the lawyer for Reade Seligmann." MSNBC

"Kirk Osborn, the attorney for Reade Seligmann, let it be known that he had visited Nifong early on to show him some exculpatory evidence, and that Nifong refused to see him. Shortly thereafter, some of that evidence became public. One or more of the players had photographed the party with a digital camera, which provided time-stamped photographs that helped to establish a time line of events. Through these pictures, and phone records, a taxi-driver’s statement, security pictures at an A.T.M., and computerized entry documentation, Osborn was able to demonstrate convincingly that Seligmann was on the phone or in a cab during much of the time when the attack allegedly took place." New Yorker

Nifong’s strategic decision not to consider evidence that debunked the false accusations his career depended on was not limited to only the cases of Reade Seligmann and Collin Finnerty, nor did his efforts to hide from evidence of innocence end with those first two indictments. When David Evans was indicted a month later, both Evans and his attorney, Joe Cheshire, described similar refusals by Defendant Nifong.

Evans said that for weeks he has been trying to contact District Attorney Mike Nifong, who is prosecuting the case. Defense lawyers have complained that Nifong was not accepting evidence that may prove their clients innocent.

"All of my attempts have been denied. I've tried to provide him with exculpatory evidence to show him this could not have happened," Evans said, adding, "apparently, there's a lack of interest in my story — the true story."

...

"I've never in my entire life had a prosecutor refuse to see any evidence ... when your ears are shut and your eyes are close and your mouth is open, sometimes you don't want to see the truth," Cheshire continued, saying he believes Nifong's persistence in pursuing this case is purely for political reasons.

"This is one of the saddest days for justice in the state of North Carolina. This case has been taken out to the news media before an investigation was finished by a person seeking public office. Accusations against many, many young men were made before an investigation was completed," Cheshire said.

"This community has been torn apart intentionally on racial lines, on political lines and these boys have been chopped up in the process. They are victims, their families are victims. This community is a victim and our justice system is a victim. And these boys not only will prove that they are not guilty but they will prove unquestionably that they are innocent." FOX

Repeated instances of Nifong's failure to meet his ethical obligation as a prosecutor to consider exculpatory evidence possibly damaging to his case were not only reported by the defense attorneys, but they were also documented by NC Attorney General Roy Cooper.

"The lawyers tried to give him this stuff and he didn't want to take it," says State Attorney General Roy Cooper. "If you're a prosecutor and the defense attorney is willing to come in and give you information about the case, give you what they have, then you say, 'Yes, please come in and let me know what your case is.'" CBS

As late as December, Nifong’s resistance to adhering to the ethics rules continued.

On Dec. 5, Jim Cooney met Mike Nifong for the first time. Cooney, a veteran defense lawyer from Charlotte, had recently taken over as lead attorney for Reade Seligmann, one of three Duke lacrosse players Nifong had charged with rape.

Cooney wanted to start on the right foot with the man trying to put his client in prison for 20 years, so he began with a goodwill gesture. Back in May, Seligmann's former top lawyer had filed a motion arguing that Nifong's misconduct was so severe that a judge should yank the district attorney off the case.

Cooney withdrew the hostile motion four days before meeting with Nifong in his sixth-floor office.

"You don't want Reade Seligmann in the case," Cooney recalls saying. A jury would never convict Seligmann because of his powerful digital alibi: Cell phone records, an ATM surveillance photo and dorm records showed Seligmann left the party minutes after the two dancers stopped performing.

According to Cooney, Nifong said he was displeased that Seligmann's prior attorney had made the alibi public.

"There is no such thing as an airtight alibi," Nifong said.

Cooney was prepared to offer to bring in Seligmann for questioning. He was willing to open his entire file and investigation, but Nifong again said he would stick by Crystal Mangum's story.

"There is nothing you can show me that will change my mind," Nifong replied. "Only her and her story. As long as she's willing, we're going forward." N&O

Incredibly, despite his well-documented history of repeatedly refusing to view or consider evidence offered by the defendants, Nifong hypocritically claimed to the Court and to the State Bar that the defense attorneys were withholding evidence from him.

To the Court:

"Nifong asserted that none of the defense attorneys had provided him with the info. on "reciprocal discovery" relating to the evidence of their innocence.

"He was quickly corrected by Jim Cooney, Reade Seligmann's co-counsel, who noted that months ago co-counsel Kirk Osborn filed a statement of alibi defense.

"Nifong, at the time, asserted that he hadn't read the Osborn motion, because he was too busy to read "fiction."

"Sheepishly, Nifong then admitted that he had in fact received the Seligmann evidence. Nothing like the DA making a demonstrably incorrect affirmation to the Court." KC Johnson

To the State Bar:

“By comparison, in response to the State’s reciprocal discovery request filed on May 18, 2006, the defendants have furnished nothing despite having furnished photographs and other evidence to national media outlets which have aired them as “defense evidence.”

"The only such items the State has seen are black-and-white plain paper photographs of attached to Seligmann’s notice of alibi defense.” --Nifong to the State Bar

To the public, Nifong and his helpers in the Durham Police Department decried the imagined lack of cooperation as a conspiracy of silence.

Herald Sun reporter Brianne Dopart wrote:

“Addison said police approached the lacrosse team with the five-page search warrant on March 16, but that all of the members refused to cooperate with the investigation. The refusal led officials to issue a "non-testimonial" order -- which allows police to threaten suspects with legal consequences if they choose not hand over evidence -- for each player's DNA." LS

Cpl. David Addison is quoted as saying:

"Addison said it was "unfortunate" that police had to go to such lengths, but that the team members "denied participation or knowing anything."

"Addison said the team got several chances to cooperate with police and that the non-testimonial order was issued only after the players kept silent."

"We never would have had to do those swabs if they would've cooperated," he said. Addison said police can't force samples from anyone they believe to be implicated in a crime. But he said that, in this situation, there was "really, really strong physical evidence" that police will be able to compare with DNA results.” LS

Nifong:

"The lacrosse team, clearly, has not been fully cooperative," Nifong tells Rene Syler and the nation on the CBS Early Show, “I think that their silence is as a result of advice with counsel." CBS March 30

"If it's not the way it's been reported, then why are they so unwilling to tell us what, in their words, did take place that night?" Nifong told [George] Smith on Thursday. "And one would wonder why one needs an attorney if one was not charged and had not done anything wrong." ESPN March 30

"Later, Mr. Nifong would repeat the argument of the Wall of Silence Hoax, while arguing for the court to allow his subpoena for access to the unindicted players' personal information." LS

In May, Nifong would hint to the press that he had presented unpublished (and now we know non-existent) evidence supported his charges. Toying with Rita Cosby, Nifong would acknowledge "a lot more evidence in the hands of the defense attorneys" while coyly hinting that he had put it there and giving the impression that it was inculpating rather than exculpatory.

"NIFONG: One would hope that I would not be proceeding without some evidence. And there is a lot more evidence in the hands of the defense attorneys right now than most of the public knows about. And I expect that soon there will be more such evidence.

"[RITA] COSBY: Is it safe to say just in general, you have a lot more than we know about?

"NIFONG: I think that‘s probably pretty safe to say" MSNBC

In late June, Nifong pretended to the press that there were no facts which contradicted his hijacked Hoax. At the time, reporters were unaware that Nifong had already received definitive exculpatory findings from Dr. Meehan. Stating confidently that no evidence he had seen disputed his original assessment, Nifong failed to admit that he had purposefully hidden from the defense evidence and conspired to hide the exculpatory DNA results from the innocent defendants.

"None of the 'facts' I know at this time, indeed, none of the evidence I have seen from any source, has changed the opinion that I expressed initially," Newsweek

In his thinly sliced pseudo-apology to his victims, Nifong pretended that the indisputable evidence of innocence that he unethically refused to hear was subsequently uncovered by additional investigation on the part of the special prosecutors who replaced him.

"Obviously, they have had access not only to all the evidence that I had, but also to additional evidence that I have not seen which they developed during their twelve weeks of independent investigation. I have every confidence that the decision to dismiss all charges was the correct decision based on that evidence." N&O

Defense Attorney Joe Cheshire quickly called out Nifong’s continued deception.

"This is not an apology," said Joseph B. Cheshire V, an attorney for Evans. "This is another attempt by Mr. Nifong at revisionist history, the same thing he has done with the facts throughout this entire case. ... He had access to all the evidence in this case except that which he chose to ignore because it did not comport with his version of what he wanted the case to be." N&O

In response to Cheshire’s calling out Nifong’s deception, the rogue prosecutor’s spin master, David Freedman, defended Nifong’s statement and pretended that Nifong had not taken the opportunity to rationalize his actions and words.

"One of Nifong's attorneys, David Freedman of Winston-Salem, defended the statement.

"I don't know what could be more direct to say, 'I apologize to these three students,'" Freedman said. "There are people out there, who regardless of what Mike Nifong can say, they're not going to accept it." N&O

It appears, however, Defendant Nifong did answer these claims directly in his response to the State Bar charges. Not surprisingly, Nifong remained unrepentant and truth averse in his reply. Despite the voluminous documentation of numerous instances of his failure to comply with his obligation to not avoid exculpatory evidence, Nifong denied having ever refused offers to consider evidence of innocence.

"206. Before the Duke Defendants were indicted, Nifong repeatedly refused offers from counsel for the players who were eventually indicted to consider evidence and information that they contended either provided an alibi or otherwise demonstrated that their clients did not commit any crime." -- State Bar Complaint

"206. The allegations contained in paragraph 206 of plaintiff's Amended Complaint are denied." -- Nifong Answer

Perhaps the best hint of the damage to be done by Nifong's intentional avoidance of evidence is found in the caution issued by Butch Williams last spring.

"What happens if the DNA comes back and it's none of these young men? How do you apologize to them? How do you make it right? How do you restore their character?" said defense attorney Butch Williams.