Our Collective Voice #2 - ME

ME said...

DIRTY DEEDS—BUT THEY DON’T COME CHEAP (Indiscretions or Outright Lies?)

1) Nifong affidavit, before the DNA evidence came back negative: “The DNA evidence requested will immediately rule out any innocent persons, and show conclusive evidence as to who the suspect(s) are in the alleged violent attack upon this victim.”

2) Nifong April 11: “I would not be surprised condoms were used.” This statement made despite having the Duke medical reports in hand wherein the complainant clearly and repeatedly said no condoms were used.

3) Nifong’s Mar 31 videoed “chokehold demonstration” after the complainant, in at least one medical exam interview, had indicated that she was not choked and after Nifong’s Mar 30 CBS video interview where he did not list the charge of Felonious Strangulation (that charge was previously dropped by Nifong).

4) Nifong’s statements with regard to a date rape drug being ingested by the complainant despite the fact that he knew he nor the DPD nor anyone at Duke Medical ordered a toxicity screen to be performed on the complainant which would prove or disprove the presence of a date rape drug. Further, he made the date rape drug statements despite the fact that he knew (or should have known) that the complainant was drinking (and may have been taking Flexeril) in the late hours of March 13.

5) Nifong’s “Blue Wall of Silence” and “Duke Daddies can buy them expensive lawyers” statements regarding the Duke Lax players made immediately after the three team captains voluntarily provided: DNA samples, written statements and hours of interviews, the names of the people at the party, volunteered to take polygraph exams, and assisted in the gathering of evidence in their house (all without benefit of council).

6) Nifong said, as late as Mar 30 or Mar 31, he was unaware of the identity of the individual that placed the 911 call on Mar 14. The Durham Police Department knew the identity of that caller on Mar 14.

7) Nifong’s statement on Apr 11: “My conviction that a sexual assault actually took place is based on the examination that was done at Duke Hospital.” (This statement made immediately following the release to the public that the DNA evidence failed to match any Duke player.) This statement made notwithstanding the fact that Nifong had the following in hand at the time: all of the Duke medical reports, the Jarriel Johnson narrative of the complainant’s activities leading up to March 14, the DNA test results, the knowledge that the DNA was positive for an (possibly) unknown person at the time. It is not possible for Nifong to have based his “conviction” on the Duke medical examination given the evidence he had in hand at that time.

8) This following Cheek’s announcement that he would not run for DA’s office: Nifong said Cheek, former sheriff Roland Leary and state juvenile justice official Ed Pope had visited him to offer unsolicited advice "on a matter that had arisen during the campaign on which they had an opinion with respect to how it should be handled. …” Listeners assumed Nifong was referring to the Duke Lax Case. Upon hearing the Nifong comments Leary said that the meeting "had nothing to do with the lacrosse matter. We're not magicians or soothsayers. At that time, we had no way of knowing the lacrosse matter was going to happen. …” Leary said this, of course, because the meeting occurred prior to the March 13 Duke Lax incident.

9) Nifong has never told the public of the complainant’s recantation of the rape allegation.

10) Investigator Himan (under the supervision of Nifong) included the following (false) sworn statement in a probable cause affidavit issued March 23 in support of an Identification Order that compelled 46 members of the Duke lacrosse team to give DNA samples and submit to being photographed: "Medical records and interviews that were obtained by a subpoena revealed the victim had signs, symptoms, and injuries consistent with being raped and sexually assaulted vaginally and anally. Furthermore, the SANE nurse stated the injuries and her behavior were consistent with a traumatic experience." It is impossible for the subpoenaed medical records and interviews to have been in the possession of Himan or Nifong on March 23 because the Duke medical records (obtained by Himan via Himan’s subpoena) were not printed by Duke Medical until March 30 and Himan did not pick them up at Duke Medical until April 5. Further, the Duke medical records released to date are entirely inconsistent with Himan’s statement in the affidavit. (Note: the same probable cause language was included in a later March 27 probable cause affidavit.)

11) DA Nifong: "I did not accuse anybody of any crime. The only detail I revealed was that based on the medical exam, the woman was the victim of a sexual assault. ... I don't believe that constitutes trying a case in the media." Nifong said the foregoing in the context of defending himself against charges made by defense lawyers and legal experts that say Nifong may have crossed ethical lines in public comments about rape allegations involving Duke Lacrosse players, potentially prejudicing jurors and setting off a media maelstrom. N&O Apr 21

Nifong public statements that belie his protestation of innocence include:

"I'm not going to allow Durham's view in the minds of the world to be a bunch of lacrosse players at Duke raping a black girl from Durham." NBC Apr 12

"In this case, where you have the act of rape - - essentially a gang rape - - is bad enough in and of itself, but when it's made with racial with racial epithets against the victim, I mean, it's just absolutely unconscionable," said District Attorney Mike Nifong. ABC Mar 27

“The circumstances of the rape indicated a deep racial motivation for some of the things that were done,” Durham district attorney Mike Nifong said.

“It makes a crime that is by its nature one of the most offensive and invasive even more so.” MSNBC Apr 3

12) On Mar 16 the DPD listed the complainant’s “cellular camera telephone” as an item to be seized during a search of 610 N. Buchanan Blvd. That cell phone was retrieved by DPD during the Mar 16 search of the defendant’s house.During a May 18 hearing, attorney Osborn argued at length for a “proposed order” he sent to DA Nifong and Judge Stephens on May 2.

The proposed order would direct two experts (one from Osborn and one from the DA’s office) to download data and phone calls from the complainant’s cell phone in such a manner as to properly preserve the cell phone’s stored data. During the course of providing information to Judge Stephens regarding whether or not the Judge should issue an order to extract the data from the complainant’s cell phone, DA Nifong made the following utterances:

• (i) “I understand it [the cell phone] was seized and I assume it is in the custody of DPD.”
• (ii) “It [the cell phone] would be evidence not with respect to anything contained therein [i.e. phone calls].”
• (iii) “I wonder what evidence he [Osborn] thinks he is entitled to from the telephone.”
• (iv) “We have our own, dare I use the term, ‘expert’ at DPD who is reviewing the cell phones that were seized...”
• (v) “I do not know right off-hand.”

This last comment made in response to Judge Stephens inexplicably going off on a tangent as to whether or not the cell phone in question actually belonged to some unnamed “third party” rather than the complainant.

[Note: each of the five comments is in chronological sequence. Note that some of the comments contradict earlier comments.]

In order for Judge Stephens (any other party listening to the hearing) to believe what Nifong said in his statements above to be truthful and forthcoming, the Judge would have to believe the following:

• (i) The investigators did not ask the complainant in the two months between Mar 16 and May 18 about any calls she may have made in the hour preceding the Mar 13/14 party and about any calls during the party, or
• (ii) the investigators did ask the complainant between Mar 16 and May 18 about any calls she may have made in the hour preceding the Mar 13/14 party and about any calls during the party, but the complainant told the investigators that she did not make any calls during the relevant time frame, or
• (iii) the complainant told the investigators she did make calls in the hour preceding the Mar 13/14 party and during the party, but the investigators chose not to investigate the calls the complainant made, or
• (iv) the complainant told the investigators she did make calls in the hour preceding the Mar 13/14 party and during the party, and the investigators investigated the calls, but chose not to divulge those calls to the DA’s office. ANDThe investigators failed to make any notation of any such questions to the complainant and her responses in their investigative notes during that two month time frame!!

Footnote: It is most important to keep in mind that the data ultimately preserved and retrieved from the complainant’s cell phone records provided evidence (known to date) of:

• (i) Phone calls the complainant received in the minutes leading up to her arrival at the party which established her time of arrival after 11:39 p.m.
• (ii) The phone call at 12:26 a.m. to Centerfold Escort Agency

13) DA Nifong personally signed paperwork that changed Kim Roberts/Pittman’s (second dancer at the Duke Lacrosse Mar 13/14 party) bail status. The change in bail status freed her from having to pay a $1,875 balance to her bail bondsman. Nifong said the change in Ms. Roberts/Pittman bail status (and presumably DA Nifong’s personal handling of the change and personal signature on the paperwork) was “routine.” DA Nifong denied it had anything to do with the lacrosse case.In his denial here’s what DA Nifong does not disclose to the public, facts that belie his comments –-

• (i) On Mar 20 Roberts/Pittman gave statement to Duke Lacrosse case investigators that included: Roberts/Pittman said it was a “crock” that the complainant was sexually assaulted. She also said she was with the complainant the whole time until they left except for a period of less than five minutes when the complainant would not leave.
• (ii) On Mar 22, two days after Roberts/Pittman gave her verbal statement to investigators and on the same day she provided a written statement to investigators, Roberts/Pittman was arrested on a probation violation charge stemming from an earlier embezzlement conviction.
• (iii) On Apr 17, the same day two Duke Lax case defendants were indicted, Nifong personally requested a change in bond status for Roberts/Pittman. Nifong then personally signed paperwork that changed Roberts/Pittman’s bail status. The change in bail status freed her from having to pay a $1,875 balance to her bail bondsman.
• (iv) Then on Apr 18, the day following her changed bail status, Ms. Roberts/Pittman’s “recollection” with regard to the events of Mar 14 changed radically from the oral and written statements she provided to investigators less than one month earlier. On Apr 18, Roberts/Pittman gave the first of several interviews where she provided the following public comments: "I was not in the bathroom when it happened, so I can't say a rape occurred -- and I never will,'' she told The Associated Press Apr 20. "In all honesty, I think they're guilty."
• (v) Mark Simeon is Ms. Roberts/Pittman’s attorney. Mr. Simeon provided much needed support for DA Nifong in his May campaign for the office of the DA. Mr. Simeon went before the Durham Committee on the Affairs of Black People, a very influential group, and urged them to vote for Nifong. Simeon also invited Nifong his church, and introduced him to the African-American congregation and praised Nifong as a "good prosecutor."
• (vi) Simeon has also agreed to represent Roberts/Pittman in any civil litigation that might stem from the lacrosse case.
• (vii) Simeon also said he wants to represent the complainant in the Duke Lacrosse case in any future lawsuit.

14) Cab driver Moezeldin Elmostafa signed a sworn statement in April saying that on the night of a Duke Lacrosse party, he picked up Reade Seligmann and another player and drove them to an automated teller cash machine, a fast-food burger joint and then a campus dorm, thus providing Seligmann with an apparent alibi in defense of the rape charges filed against him. Then in May, Duke Lacrosse case investigators Benjamin Himan and R.D. Clayton arrested Elmostafa on a 2003 misdemeanor warrant that stemmed from a cab ride Elmostafa gave to a woman in 2003. Elmostafa has said the warrant came after he gave the woman a cab ride to a department store. Elmostafa said Investigators Himan and Clayton asked whether he had anything new to tell them about the rape case before driving him to the Durham County jail. "The detective asked if I had anything new to say about the lacrosse case," Elmostafa said. "When I said no, they took me to the magistrate." Elmostafa was then taken to jail and held for five hours, until a friend posted his bail.With regard to the arrest of Elmostafa, DA Nifong made the following public comments: "I would be very surprised if the officers [Himan and Clayton] even thought about using that [Elmostafa’s arrest] as an opportunity to ask him [Elmostafa] something [if Elmostafa had anything new to say about the lacrosse case]," Nifong said.

The warrant for Elmostafa's arrest was discovered during a routine rundown of information about witnesses in the case, Nifong said in July. Here’s what DA Nifong does not disclose to the public, facts that belie his comments –-

• (i) Investigator Linwood Wilson said that DA Nifong wanted to be told when the taxi driver Moezeldin Elmostafa was arrested.
• (ii) The District Attorney’s office or the Durham Police Department performed investigations on driver Elmostafa that included: a criminal record background check, examination of insurance and driving history, and an examination of several years' worth of drug tests (all of which were negative).
• (iii) Elmostafa has said that once he learned about the theft, he assisted the store's security officers.
• (iv) In 2003 the woman pleaded guilty to stealing purses valued at $250 from the department store.

Footnote: Most, if not all, of the above falsehoods have been reported earlier by a number of reporters and commentators. The above is meant to be a ready reference compendium of the apparent DA Nifong falsehoods to date. They do not include the manifold rogue DA unethical extrajudicial public comments, other systematic violations of NC Bar Ethics Code 3.6 and 3.8, possible prosecutorial misconduct and violations of procedural norms.

ME