Wednesday, November 01, 2006

Prosecutors Question Nifong's Failure To Interview The Accuser

Back on the campaign stump, interim District Attorney Nifong attempts, in an interview with Benjamin Niolet of the News & Observer, to defend his failure to personally interview, and have the police investigators he directs re-interview, the credibility challenged instigator of the Duke Hoax. His disinterest is inexplicable given the massive inconsistencies between her statements and his own theories as well as nearly all the physical, forensic, and testimonial evidence. Clearly shaken by the resounding criticism resulting from his finally being cornered into admitting that, despite his efforts to encourage people to think otherwise, neither he, nor anyone in his office has ever bothered to personally assess the accuser’s credibility, or to resolve the many discrepancies between her multiplestories and reality.

To deflect the overwhelming amount of criticism he has been subjected to of late, Mr. Nifong pretends that his critics are only non-prosecutors with selfish motives. Continuing his theme of “everyone is out to get me,” DA Nifong states:

"For people who have never prosecuted cases to suggest they just can't believe I
would do that [have other people do the interview] seems kind of self-serving."

Apparently, Mr. Nifong is hoping that Durham County voters missed prosecutor Linda Fairstein tellinging ABC News:

“That is just against the progress that's been made in this very specialized field."

Far from having never prosecuted cases, Ms. Fairstein headed the Manhattan District Attorney's Sex Crimes Unit, an office that saw an estimated 4,000 rape accusations per year, for more than two decades. Ms. Fairstein, who is widely recognized as a pioneer in the field of sex crimes prosecution continued her scolding of Mr. Nifong by adding,

“It belies anything a prosecutor would do before making charges. There was no need to rush to the charging judgment in this case. … This whole train should have been slowed down and everybody interviewed before charging decisions. To have witnesses appear on a media program revealing information that the prosecutor doesn't know is stunningly inappropriate.”

Ms. Fairstein is not the only prosecutor to level significant criticism in the direction of DA Nifong for what he suggests, falsely, has only outraged the inexperienced and self-serving. Jonna Spilbor, whose law career includes stints as a prosecutor on the local and federal level with the Criminal Division of the San Diego City Attorney's Office and the United States Attorney’s Office, offered a scathing assesment of Nifong's failures at FindLaw.

“I can tell you that this failure to interview the accuser is rare, striking, and disturbing. It means that the D.A. failed to personally assess the accuser's credibility before filing charges against the defendant, or presenting evidence to the grand jury to obtain the indictments in the case. A District Attorney has a duty to justice. The saying is that "the government wins when justice is done," not when it gets a "Guilty" verdict. But this D.A. failed to make sure he was, in fact, serving justice by looking his accuser in the eye, listening to her story, and assessing her credibility for himself, just as he knew a jury someday would do. That story is extremely important here. The accuser, in her statements to police, maintains that, besides the defendants themselves, she herself was the only direct witness to the rape - which she says took place in a small bathroom, away from the rest of the party. That means witness testimony - her testimony - will be crucial here - all the more so, because the forensic evidence seems, thus far, to be utterly lacking. The DNA evidence, as noted above, simply hasn't held up.”

Spilbor wasn’t buying Nifong’s excuse that he feared becoming a witness either.

“Nifong has said that the accuser was traumatized at the time he first tried to interview her. But that's no excuse for this conduct. Nifong has said that, even in innocuous conversations, the accuser couldn't look him in the eye, and appeared on the verge of tears. And he's said that in a meeting on April 11 -- - about a week before he gave the case to the grand jury -- he and an investigator avoided discussing details of the case with the accuser because she was "too traumatized." (Attorneys bring investigators along to such meetings in part so that, if disputes arise as to what was said, the investigator - not the attorney - can become a witness in the case.)”

Bull Dog Pundit, a former Pennsylvania prosecutor, was also incredulous.

“As many of you know I was an assistant prosecutor for 3 years. During that time I tried a number of jury trials, including many rape cases. Based on that experience my jaw dropped at the latest revelation from Mike Nifong, the Durham county DA handling the rape allegations against 3 Duke Lacrosse players has yet to talk to the accuser about the events of that night. Wow. Just wow. To me, it’s basically prosecutorial malpractice that whomever is going to be handling the case has not spoken with her in the six (6) months since the allegation. I think I know part of the reason - the DA doesn’t want to have to tell the defense about any statement she gives to them, which they would be required to do under the rules of evidence…See, the problem here is that the defense could make a big deal of the fact that whatever the victim told the DA was told long after the events allegedly occurred, and the most reliable statement is one given in close proximity to the event, not one given months later. Rest assured that the defense attorney’s will have a field day comparing what the alleged victim says in court (if it ever gets that far) versus some of her statements soon after the alleged incident. But perhaps the most disturbing thing to me is that the DA hasn’t confronted the alleged accuser with the seeming inconsistencies of her own statements. We’ve seen from the discovery provided by the prosecution that there are many differing versions given by this woman on the night in question and soon afterwards. It’s puzzling why they didn’t try to resolve these conflicts by talking to her before giving charges.”

Timothy Baughman , who serves in the Wayne County, Michigan District Attorney’s Office as Chief of Research, Training & Appeals for that office was equally unimpressed with District Attorney Nifong’s ineptitude. Mr. Baughman joined other prosecutors in commenting at the Volokh Conspiracy.
“I've been a prosecutor for 31 years. The police do investigate, but the prosecutor makes the charging decision, and at least here (Wayne County, including Detroit) it would be unheard of to make the charging decision in a serious assaultive case, particularly a case of this sort, without interviewing the complainant (other than a homicide, of course). I've never heard of such a thing.”
Mr. Baughman, who has appeared before the United States Supreme Court five times and the Michigan Supreme Court over 60 times, continued his criticism of Mr. Nifong with an email to the National Review’s The Corner.

"I've been a prosecutor in Michigan for almost 32 years (I briefed and argued the Hudson v Michigan "knock and announce" case this year) and I was astounded to read that not only had the charges here been brought without the DA's Office interviewing the alleged victim, but that she has yet to be interviewed by the DA's office. One doesn't bringcharges in assaultive cases, especially of the sort here, without first interviewing the alleged victim. I've simply never heard of such a thing."

Andrew McCarthy , former federal prosecutor and recipient of the Justice Department's highest honors: the Attorney General's Exceptional Service Award and Distinguished Service Award, also chastised DA Nifong at The Corner.

“If the AP report is true, and the quotes from Nifong are accurate, that is just breathtaking incompetence. It is unethical to indict a case — not talking mere arrest here, but indictment, which is a much weightier step — unless a prosecutor is personally convinced that a rational jury would find a defendant guilty beyond a reasonable doubt at trial based on the facts that are known at the time of indictment. How can you indict a he-said-she-said case without first satisfying yourself about what she would actually say? Nifong is not a social worker, he's the prosecutor. It's not his job to inform himself about how the witness is doing. Of course, as a human being and as someone who has to work with a witness, you always ask such questions. But the prosecutor's principal task is to get the witness's testimony and evaluate it against other known evidence. Indictment can ruin lives. You don't do it unless you're confident you've got the goods.”

Completing our round up of Nifong critics with prosecutorial experience and without self serving motives, Pam Bondi, Hillborough County, Florida prosecutor and rehabilitated Nifong apologist, may have earned herself exclusion from the Hag of the Hoax contest with this evisceration of the DA:
“Greta…only if she was in a coma…and he couldn’t talk to her at all before then…is the only thing that I can seriously, possibly imagine. And I can tell you how we do business in Tampa…is that we bring in our victims for live intake…meaning you bring them into your office, you interview them because especially in a case like this, her credibility is everything. This case rises and falls on this victim’s testimony, especially since her fellow dancer has given so many different versions…so I mean if I was prosecuting this case…my office…we would have spent hours and hours with this victim by this point. Especially, like you said, when three young men’s lives hang in the balance.” On the Record with Greta Van Sustern 10/27/2006
It appears that Mr. Nifong’s attempts to deceive uninformed voters has not escaped the attention of many well respected prosecutors around the nation, who appear not only critical, but professionally offended by Nifong's highly questionable practices and petty rationalizations.
To close with the words of Greta Van Sustern from last Friday night:
“Well, I’ll tell you one thing, all eyes…all legal eyes…in the nation should be on the race unless something drastically changes and Nifong can convince us otherwise. We should all be watching this because this is in many ways a referendum on a system of justice down there. And we’ll be watching it.”


Anonymous said...

To outrage an outrageous prosecutor like Linda Fairstein really says something about Nifong's actions in this case. What is it going to take for a judge to finally put a end to all this Nifongery?

Anonymous said...

How could Nifong demonstrate the chokehold on the Abrams show if he never talked with the accuser?

He was making it up

Anonymous said...

The mayor of Durham, the city manager, members of city council, police chief and admin brass, the local press, not to mention the entire district attorney's office and prior and current judges ARE ALL COMPLICIT in this grotesque miscarriage of justice. So too, Duke's president Broadhead and P.R. goof John Burness, admin flunkies, and the Despicable 88-- enablers and moral cowards ALL. Pat yourselves on the back-- Nifong couldn't have gotten this far without your help. Nifong is yours; Nifong speaks for you; Nifong will always be associated with you, from here to eternity. The boys will eventually recover, but your reputations never will. We know you for what you are. Sic Semper Tyrannis

Anonymous said...

Any ethical, rational, sane person understands the injustice of this case. However, Durham evidently simply doesn't care. The blatant misues of the justice system for political gain is sickening. This case leaves me depressed and worried about the state of justice, particularly in North Carolina. This case has been so public, the evidence is known, yet the train keeps on rolling. The parents of these young men must be terrified. I can't imagine my child being innocent of a crime and being used by a immoral, corrupt DA as this man's ticket to winning an election. It is beyond reprehensible.

Anonymous said...

I now believe DA Nifong made evidence up, that is what is really scary. Most of us were shocked at these allegations and in fact I believed them because the DA & Police said the woman was beaten.

You just don't expect a DA & Police to lie about a beating. I was expecting to see evidence of a beating and there is NONE! They just lied, from the wall of silence, to saying they didn’t know who made the 911 calls, date–rape drugs, condoms, the chokehold, then the 30 to 10 or 5 min rape! Now we will found Nifong never talked with her about the case! He never talked to the defense lawyers when they wanted to give him exculpatory evidence. The police have never talked to Seligman or Finnerty! What are they doing? Why is there any prosecution if the DA & Police don’t talk to the key witnesses?

I don't understand Durham & North Carolina. It just comes down to the citizens of Durham and I don't know how they could elect this incompetent and deceitful man as the chief law enforcement. Aren't they worried they could fall into his web of lies one day?

Somebody has to stop this maniac!

Anonymous said...

Great cartoon Liestoppers.

In answer to the question asked asked in the cartoon, you must remember, Nifong wears many hats and is multi-talented. He is also a MIND READER!

Anonymous said...

Have you sent this to the News & Observer? The Herald Sun will never publish any of those comments--they were still acting as Nifong's tool today comparing another case in NC with this one--however, in that case they actually had DNA from the accused!

Anonymous said...

How can Liefong and the Keystone cops generate thousands of pages of discovery and not ever have questioned the accuser? Why haven't they questioned the accuser about information in those pages that directly contradicts her account(s) of the evening? The case file alone indicates that no rape occurred. Add to that the evidence the defense has and the case is truly one of the biggest losers ever. Liefong just has to get through the election and then he'll get rid of this case and he'll get rid of the accuser too.

Anonymous said...

Vicki Lawrence 1973 from the song "The night the lights went out in Georgia".
Don't trust your soul to no backwood southern lawyer.
Cause the judge in town has blood stains on his hand.

Anonymous said...

Nifong will say that he talked to the investigators, who talked to the accused and demonstrated the choke hold. Simple as that.

Has anyone said that the investigators haven't talked to the FA? Presumably, they were present when she wrote/made her statement. Nifong even said that it was the investigators who talked to the accuser. I'm nost sure I see what the discrepancy is over the choke hold.

Sure, I believe he's lying. If not, he is utterly incompetent and corrupt. But still, he's covered.


Anonymous said...

Oh, meant to compliment you on a great compilation of comments. Another body of information for later use. Wish someone could get this out to the Durham community. Just think, if Cheek were actually conducting a campaign, this stuff (along with KC Johnson's research on rape cases since Nifong became DA) could be discussed in public forums instead of stuck in blogs where the people who most need to know it won't read or won't believe it.


Anonymous said...

Nifong was so POed at the accuser after the DNA came back (with several non-lacrosse matches, no doubt) that he has refused to meet with her.

Anonymous said...

Linda Fairstein was incorrect when she said there was no reason for Nifong to rush the charges...Perhaps she did not know there was an election to be won!!!

Anonymous said...

Wasn't there a time when Nifong stated that he looked the accuser in the eye and knew a rape had occurred? How could he have possibly come to that conclusion if he admits that she wouldn't even look up and barely said 15 words?

Anonymous said...

"Wasn't there a time when Nifong stated that he looked the accuser in the eye and knew a rape had occurred? How could he have possibly come to that conclusion if he admits that she wouldn't even look up and barely said 15 words?"

Maybe it was the eye in the back of his head.

Anonymous said...

The reason this case continues has nothing whatsoever to do with rape. Nifong started this runaway train based on an accusation that played into the hands of certain members of the community (45%) who are more concerned with class envy than they are truth and justice. This is about getting even, not getting justice. This is a race case, not a rape case.

LieStoppers said...
This comment has been removed by the author.