Duke Case: North Carolina's Criminal Justice Problems and the Heroic Attorneys
The North Carolina State Bar may have been monitoring since March 30, 2006, but it did not file a complaint against Mr. Nifong until AFTER it became public knowledge during a hearing in the Duke case that Mr. Nifong had been concealing exculpatory information and lying about it. THAT became public knowledge because Judge Osmond Smith replaced Judge Kenneth Titus on the Duke case and, despite Mr. Nifong’s opposition, ordered the production of the backup documentation that proved that exculpatory information had been omitted from the report of the private laboratory that Mr. Nifong had retained to do follow up testing, in violation of its own rules, standard practice, common decency and constitutional duty.
With the Duke case dismissed and North Carolina Attorney General Roy Cooper and his subordinates (James Coman and Mary Winstead) being lauded as heroes (even though taking the case to trial would have been absurd, they took much more time than needed to decide to dismiss and they said that they won't prosecute false accuser Crystal Gail Mangum because they consider her honest and don't want to exacerbate racial tension), it is time to focus on the problems of the North Carolina criminal justice system and the performance of the defense attorneys.
“As you know…Attorney General Roy Cooper announced that his office had made the decision to dismiss the remaining charges in what has come to be known as the Duke Lacrosse Case. While I certainly take issue with some of Mr. Cooper's comments, I want to make it clear that I have every confidence in the investigation into the case that was conducted by his office. I have known Jim Coman and Mary Winstead for more than two decades. Both their legal abilities and their commitments to justice are beyond reproach. 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.
”At the same time, it is important to remember that the Attorney General had the opportunity to review this investigation and to make this decision because I requested that he do so…. It is also important to remember that I turned over to him every document, every photograph, every piece of evidence of any kind that had been turned up in the Durham Police Department's investigation of these cases and in my office's review of that investigation. If I did not want to subject either that investigation or my own performance to such scrutiny – if, in other words, I had anything to hide – I could have simply dismissed the cases myself. The fact that I instead chose to seek that review should, in and of itself, call into question the characterizations of this prosecution as ‘rogue’ and ‘unchecked.’
”Finally, it is, and has always been, the goal of our criminal justice system to see that the guilty are punished and that the innocent are set free. We all want that system to work perfectly. At the same time, we all know that no system based on human judgment can ever work perfectly. Those of us who work within that system can only make the best judgments we can based on the facts available to us with the understanding that those judgments may have to be modified as more facts become known. That is the process I used in these cases, and that is the process the Attorney General used in these cases. To the extent that I made judgments that ultimately proved to be incorrect, I apologize to the three students that were wrongly accused. I also understand that, whenever someone has been wrongly accused., the harm caused by the accusations might not be immediately undone merely by dismissing them. It is my sincere desire that the actions of Attorney General Cooper will serve to remedy any remaining injury that has resulted from these cases.”
So said Durham County, North Carolina District Attorney and Duke case villain Michael B. Nifong via an April 12, 2007 press release.
Conviction, Mr. Nifong could not win, despite outrageous misconduct and sin.
But THAT MAN is NOT repentant and he continues to preen, posture and spin.
Mr. Nifong remaining in office and Durham County Administrative Judge Orlando Hudson not deciding the motion of Durham County citizen Beth Brewer to have Mr. Nifong removed from office. (It should have been decided in 30 days, according to North Carolina statute, but the judge who privately swore in Mr. Nifong before normal business hours is sitting on the motion, like Judges Ronald Stephens and Kenneth Titus sat on the motion to remove Mr. Nifong from the case boldly made by the late Kirk Osborn, Reade Seligmann's attorney.)
Ironically, Mr. Nifong's “apology” by way of press release emphasized the systemic problem: the North Carolina Attorney General became involved only because Mr. Nifong “requested that he do so.”
“The legal system in NC is broken when a rogue DA can subvert the grand jury system and run with false charges for a year without a check on his power."
So wrote The Johnsville News.
That’s the truth!
Let’s briefly review Mr. Nifong’s egregious ethical downward spiral (remembering that as a district attorney he is duty bound to be a fair and objective minister of justice): Mr. Nifong learned that false accuser Mangum had cried gang-rape and he obviously wanted to believe it. It fit his political need perfectly. He expected to prosper, both politically and financially, if he prosecuted the persons Ms. Mangum identified as her attackers. But there was a huge problem (besides Ms. Mangum’s history). Ms. Mangum had not identified anyone. With the local Black community pressing for indictments but no one to indict identified, Mr. Nifong took control of the investigation and ordered an identification procedure that violated federal, state and local guidelines and led Ms. Mangum to believe that anyone she picked would be a plausible choice (even though some members of the 2005-2006 Duke University Men’s Lacrosse Team could demonstrate that they had not attended the party). After Ms. Mangum chose Reade Seligmann and Collin Finnerty, the case should have collapsed, since each of them had a solid alibi and their DNA was not present in or on Ms. Mangum. But Mr. Nifong proceeded from wanting the Hoax to be true, to refusing to consider evidence before seeking indictments to treating DNA results that his office had represented would implicate or exonerate as unimportant when they exonerated, to agreeing with a state expert not to report exculpatory evidence and then lying about it to the court and the defense attorneys.
Could Mr. Nifong have done all that (and have alibi witness Moez Elmostafa (unsuccessfully) prosecuted on a baseless charge) without knowing cooperation from persons in the Durham Police Department and the Durham County District Attorney’s Office?
When Mr. Nifong denied that he had been present at a meeting at the DNA Security office on April 10, 2006 (despite the assertions of the three others present at the meeting), were there people in his office who knew otherwise and records (like telephone call records and expense records) that contradicted his denial?
The answer (it’s the same for both questions) should be obvious.
But the editorial board of the University of North Carolina's Daily Tar Heel blasted North Carolina Attorney General Roy Cooper's proposal to empower the North Carolina Supreme Court to remove rogue prosecutors and trumpeted the Duke case as proof that "the system works" and should not be changed!
False accuser Mangum is not the only North Carolinian who may be deranged.
"With the Duke lacrosse case finally closed, many questions still remain about how the case was handled. Perhaps the most important of these is, 'How can similar situations be avoided in the future?'
"One proposal, suggested Wednesday by N.C. Attorney General Roy Cooper, would allow the N.C. Supreme Court to remove an errant prosecutor.
"Although Cooper's proposal was made with good intentions, it would be wrong to give the N.C. Supreme Court the power to remove prosecutors.
"Cooper's proposal was made in response to the problematic handling of the Duke lacrosse case by Durham County District Attorney Michael Nifong.
"Throughout the investigation, Nifong's actions were condemned with allegations of lacking sufficient evidence, having questionable motives and withholding crucial DNA evidence from the defense.
"The result of Nifong's mistakes was that the N.C. Bar Association filed ethics charges against him Dec. 28. And on Jan. 12, Nifong, feeling the heat, stepped down as prosecutor for the case.
"The unofficial system for disciplining prosecutors worked in this case, making the need for a codified system unnecessary.
"Under N.C. General Statute 84-23, the N.C. Bar is given the authority to 'regulate the professional conduct of licensed lawyers' and 'take actions that are necessary to ensure the competence of lawyers.' This regulation is exactly what took effect in the Duke lacrosse case.
"Many accuse Nifong of getting caught up in the limelight of a re-election campaign and taking improper actions to rush the prosecution of the case.
"So the N.C. Bar stepped in and charged Nifong with making improper pretrial public statements, withholding DNA evidence and making false statements in court and to the N.C. Bar. These charges could result in Nifong's disbarment.
"Many people wanted Nifong removed from the case faster, but it is unreasonable to think that the N.C. Supreme Court, or any other component of the justice system, would have acted faster than the N.C. Bar did.
"It also would be a bad idea to have the N.C. Supreme Court interfering with a case that it might need to make judgment on later if the case is appealed.
"Nifong botched the case, but his mistakes were noticed and action was taken by the N.C. Bar. In that respect, the system worked just fine and doesn't need to be changed."
A poster named Laura at the newspaper's website was unimpressed: "If our system worked so slowly to properly exonerate even those able to afford the best legal representation, what about the rest of us? Sweeping change is needed bring the NC justice system up to the standards that protect citizens of other states."
Poster "tc" was blunter:
"this editorial is delusional thinking.
"To whit: Some of the best-resourced defendants, combined with a huge blog media movement for exoneraton, combined with some of the best lawyers in the country, combined with an ethical AG, combined with the fear of adverse litigation of one of the most well-funded colleges in the country (Duke) were BARELY able AFTER ONE YEAR OF INSANELY HARD WORK to reverse the effects of SYSTEMIC prosecutorial and police misconduct in the NC court system.”
The Editorial Board’s claims that Durham County, North Carolina District Attorney Michaell B. Nifong “botched” the Duke case and made “mistakes” are ludicrous.
The North Carolina State Bar did not even charge Mr. Nifong with what Fox’s Greta van Susteren described as perhaps his most outrageous misconduct: refusing to meet with the late Kirk Osborn, then Reade Seligmann’s lead attorney, to consider alibi evidence.
The Editorial Board’s claim that Durham County, North Carolina District Attorney Michael B. Nifong “botched” the Duke case and made “mistakes” sanitizes what really happened: Mr. Nifong tried to railroad Reade Seligmann, Collin Finnerty and David Evans in order to win election by manipulating gullible Black voters and promoting racial tension.
Appearing on ABC’s “Good Morning America,” defense attorney James Cooney (who replaced Kirk Osborn as Mr. Seligmann’s lead attorney) called for an independant criminal investigation into the actions of the Durham Police Department and rogue prosecutor Mike Nifong.
Both the Durham Police Department and the Durham County District Attorney’s office need thorough investigation.
Mr. Cooney: “[A]n independent agency with criminal jurisdiction needs to do an investigation into this case. We need to determine whether there was in fact criminal wrongdoing on the part of law enforcement, and on the part of Mr. Nifong."
Michael Cornacchia, an attorney for Collin Finnerty, requested that the United States Justice Department investigate. He was right. But United States Attorney General Alberto Gonzales chose to wait.
Durham’s News & Observer, an early and enthusiastic Hoax cheerleader, followed the lead of the University of North Carolina student newspaper in championing the status quo and lauding the North Carolina State Bar as the Hero of the Hoax, in an astonishing op/ed by Rick Martinez.
“The charges are history, but the Duke lacrosse case continues to generate myths based on stereotypes.
“The latest is that Reade Seligmann, Collin Finnerty and David Evans are free today primarily because their families are rich enough to hire the N.C. Criminal Defense All-Stars. If the former lacrosse players were middle class or poor, the legend goes, they'd still be facing charges and would probably wind up in Central Prison.
“That's a knee-jerk conclusion Durham District Attorney Mike Nifong might share, because it simply ignores the facts. Seligmann, Finnerty and Evans were cleared of serious felony charges largely because their innocence was brought to light by safeguards embedded in the law and available to every citizen. Not just the rich ones.
“The main heroes of this case weren't the defense attorneys or Attorney General Roy Cooper, who declared the three young men innocent. The State Bar really set the stage for exoneration.
“The Bar's executive director, L. Thomas Lunsford II, told me that even though the initial complaint against Nifong was filed in response to a grievance filed by a private citizen, the Bar had already begun to monitor Nifong's actions as early as March 30 of last year. The organization, he added, probably would have filed a complaint on its own had the citizen not stepped forward.”
Mr. Martinez creates myths instead of exposing them. The North Carolina State Bar may have been monitoring since March 30, 2006, but it did not file a complaint against Mr. Nifong until AFTER it became public knowledge during a hearing in the Duke case that Mr. Nifong had been concealing exculpatory information and lying about it. THAT became public knowledge because Judge Osmond Smith replaced Judge Kenneth Titus on the Duke case and, despite Mr. Nifong’s opposition, ordered the production of the backup documentation that proved that exculpatory information had been omitted from the report of the private laboratory that Mr. Nifong had retained to do follow up testing, in violation of its own rules, standard practice, common decency and constitutional duty.
The defense lawyers won the case by somehow convincing Mr. Nifong to agree that Judge Osmond Smith should take over the case, but, to me, the Hero of Heroes of the Duke case is not the North Carolina State Bar or the attorney who parsed the backup documents (David Evans attorney Brad Bannon), but the late Kirk Osborn, who not only recognized quickly that the prosecution was a persecution, but dared to demand that all proceedings be recorded and to move to remove Mr. Nifong from the case.
“Despite the effective actions by the State Bar, Attorney General Cooper felt compelled to look into the cameras and propose a new law to give the state Supreme Court authority to remove a district attorney from a case.
“Why do that? A Superior Court judge already has the authority to remove a rogue D.A. from the job, which obviously would take him or her off every case, not just the one in question by the Supreme Court.
“That's because under North Carolina law, any citizen can petition to remove a district attorney for cause. One already has.”
In the Duke case, the problem is obvious: politics, especially race-based politics corrupting what should be a colorblind criminal justice system.
Beth Brewer boldly filed an appropriate complaint against Mr. Nifong, but instead of acting on it Adminmistrative Judge Orlando Hudson deferred action until the ethics proceeding against Mr. Nifong is completed.
Kirk Osborn moved to have Mr. Nifong removed from the case, but Judges Ronald Stephens and Kenneth Titus sat on the motion. (That's the same Judge Titus who issued a gag order on potential witnesses, including the defendants, on his own motion.)
Other defense lawyers did not sign on to the removal motion. Eventually Mr. Osborn was replaced as Mr. Seligmann’s lead attorney by Mr. Cooney and Mr. Cooney chose to withdraw the removal motion (as though that would induce Mr. Nifong to stop persecuting his client).
The News & Observer’s Joseph Neff reported that Mr. Cooney’s overture did not dissuade Mr. Nifong from proceeding.
“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….
“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.’”
Mr. Osborn had been right from the start and the withdrawal of his removal motion was a futile mistake. Mr. Osborn realized that Mr. Nifong had chosen to railroad his client and that under the circumstances the case had to be won in the courtroom of public opinion before justice would be available to the Duke case defendants in the North Carolina court system. By publicizing his client’s convincing alibi and calling attention to Mr. Nifong’s misconduct, Mr. Osborn attracting the attention of people who eventually demonstrated what Mr. Osborn knew: that Ms. Mangum’s charges were false, the Duke defendants were innocence of all the charges, the indictments were the result of manipulation and Mr. Nifong was a rogue prosecutor who chose to abuse his power to win election, by placing the race card.
Collin Finnerty had an equally strong alibi, but it was not disclosed (a tactical decision that came with a heavy cost in the courtroom of public opinion) and he was burdened by an unrelated matter in the District of Columbia that Mr. Nifong’s media supporters used to demonize him. But for Ms. Mangum’s false charges and Mr. Nifong’s dastardly decision to obtain indictments based on them, that matter would not even have been tried. But for the misimpression created by Ms. Mangum, Mr. Nifong and their media supporters that Mr. Finnerty was a public menace instead of someone who was at the wrong place at the wrong time on two occasions a few months apart, I believe Mr. Finnerty would have been found not guilty on what was a simple assault charge in which the evidence showed that Mr. Finnerty had not struck anyone but had been hit from behind.
As usual, LieStoppers swiftly eviscerated a senseless claim in The News & Observer:
“[T]he State Bar's historic move to file charges against a rogue prosecutor while a case remained pending is counter to its own policy to defer to the court's concurrent jurisdiction in such matters. Arguing that a once-ever instance of emergency intervention - intervention that comes essentially outside the norm or established system - is proof that the system works defies reason. Further, crediting the State Bar for acting on the conspiracy to withhold evidence by filing additional charges (an act which came after the District Attorney had recused himself) while downplaying the extraordinary efforts to uncover the conspiracy also stands on shaky legs. It's difficult to understand giving the Bar sole props for its applause worthy intervention without also recognizing the heroic efforts that inspired the intervention in the first pace.”
But for the enormous attention focused on the Duke case and the extraordinary efforts to expose both the baselessness of the charges and the baseness of the prosecutor, the North Carolina State Bar would not have had a clue that Mr. Nifong had resorted to concealing exculpatory evidence and lying about it.
LieStoppers added: “Sadly, Martinez employs the same argument attempted by Defendant Nifong's attorney Dudley Witt, who suggested that the efforts of Brad Bannon to discover the exonerating evidence hidden in a massive data dump were no more than an ordinary function of the adversarial system that all defendants, regardless of means, should be subjected to. This notion that legal protection afforded to the accused rather than legal protections afforded by the accused led to exoneration is as dangerous in print when arguing for maintaining the status quo as it is in a bar hearing when arguing that all prosecutors should be allowed to proceed as Nifong did.”
Further, Mr. Martinez blithely ignores the fact that Mr. Nifong vigorously opposed the defense motion for access to the underlying documentation!
But for Judge Smith, Mr. Bannon would not have had “a massive data dump” to mine and would not have struck “gold.”
I have been told that the defense did not realize that the “massive data dump” contains evidence that Ms. Mangum had been a multiple male DNA depository on March 14, 2006 (even though I reported it on June 30, 2006 in an article entitled “Duke case: Does the prosecutor need prosecuting), but even if my article was not noticed, it seems to me that the possibility should have been obvious and it would have been a bargain to hire a DNA expert to review it to determine how many different DNA samples were present and then explain it to the lawyers, but the defense could afford to have Mr. Bannon do it.
Likewise, I cannot agree that the North Carolina State Bar is the Hero of Heroes, because (1) misconduct by Mr. Nifong (improper public statements) was obvious in March and April of 2006, (2) papers filed by the defense in the Duke case on the motion for a change of venue conveniently set it forth, (3) many people called upon the North Carolina State Bar to intervene long before it did and (4) the North Carolina State Bar finally acted AFTER Mr. Nifong had become the “walking dead man” as a result of the December 15, 2006 hearing.
My choice for Hero of the Hoax is the late Kirk Osborn, because he led the way. The truth was on the side of the defense. They didn't need to create reasonable doubt or plead a technical defense. They just need to make the truth known. That meant that they had to show that Mr. Nifong was persecuting them. Mr. Osborn did not flinch.
Mr. Cooney, Mr. Osborn’s replacement as Mr. Seligmann’s lead attorney, was not rating heroes at the time but he made the key point in lambasting Durham’s Herald-Sun: “The reason [the system] misfired is because people were afraid to speak truth to power. And I want to call out first the newspaper in Durham, North Carolina, the Durham Herald-Sun, wh[ich] to this day has not written a single editorial critical of the way which Mike Nifong proceeded. If the Durham Herald-Sun had bothered to stand up and demand proper processes, the presumption of innocence and doing things the way our constitution provides, do you think Mike Nifong would have rolled forward?”
When Mr. Nifong “rolled forward,” Mr. Osborn stood up and resisted.
North Carolina practice not to record grand jury proceedings prejudiced the defendants,so Mr. Osborn filed a written motion and requested in open court that the entire proceedings (including the settings before trial)be recorded.
Judge Stephens, for whom Mr. Nifong had worked, was not pleased.
Judge Stephens: "This is not a trial right now. We're still in the criminal admin setting in which, frankly, there are a lot of things that sometimes are done fairly informally."
Mr. Osborn persisted.
Mr. Osborn: “All right. Your Honor, there is a motion to preserve all the notes, handwritten notes, memoranda, data compilations, everything that's been generated by the law enforcement officers in this case. We would like to have all of that preserved. Nothing is destroyed. And let me tell you the reason for that.”
But Judge Stephens did not want to hear the reason.
Judge Stephens: “Well you don't have to tell me the reason for it."
As for file review, Judge Stephens was uncooperative with the defense too.
Mr. Osborn: “And then, your honor, I understand that it is custom at least in this county that we would be permitted to actually go over to the law enforcement officer's agency and actually go through their files, all their files, all their notes and so forth, personally."
Judge Stephens: “Well I'm not aware of that custom. I believe perhaps maybe that's your take on the custom. I'm not aware of that custom."
Mr. Osborn: “Would you sign an order requiring the law enforcement officers to turn over all of their notes, memoranda, reports, documents, data compilations, tape recordings and so forth to the district attorney?"
Judge Stephens: “No, sir. I'll allow him to proceed as he normally does in the compilation of his information. And if thereafter for some reason you believe that you have not received everything, then we'll address that with the court order. Right now I'm not going to order things that I believe will be done voluntarily. There's no reason for me to believe as they always generally have been, they won't be done voluntarily."
Mr. Osborn was right to want a written record. It’s ever so helpful in proving Mr. Nifong’s misrepresentations.
The Wall Street Journal’s Randy E. Barnett acknowledged “the crucial importance of defense lawyers” in saving Reade Seligmann, Collin Finnerty and David Evans and credited “blogs and competing governments” too. Mr. Barnett named “Joe Cheshire, Jim Cooney, Michael Cornacchia, Bill Cotter, Wade Smith and the late Kirk Osborn” and applauded them “put[ting] their zealous representation of their clients ahead of their own egos and fame.”
All of those lawyers were on the right side, of course, but I put Mr. Osborn first instead of last and unlisted Brad Bannon second.
Michael J. Gaynor has been practicing law in New York since 1973. A former partner at Fulton, Duncombe & Rowe and Gaynor & Bass, he is a solo practitioner admitted to practice in New York state and federal courts and an Association of the Bar of the City of New York member.
Gaynor graduated magna cum laude, with Honors in Social Science, from Hofstra University's New College, and received his J.D. degree from St. John's Law School, where he won the American Jurisprudence Award in Evidence and served as an editor of the Law Review and the St. Thomas More Institute for Legal Research. He wrote on the Pentagon Papers case for the Review and obscenity law for The Catholic Lawyer and edited the Law Review's commentary on significant developments in New York law.
The day after graduating, Gaynor joined the Fulton firm, where he focused on litigation and corporate law. In 1997 Gaynor and Emily Bass formed Gaynor & Bass and then conducted a general legal practice, emphasizing litigation, and represented corporations, individuals and a New York City labor union. Notably, Gaynor & Bass prevailed in the Second Circuit in a seminal copyright infringement case, Tasini v. New York Times, against newspaper and magazine publishers and Lexis-Nexis. The U.S. Supreme Court affirmed, 7 to 2, holding that the copyrights of freelance writers had been infringed when their work was put online without permission or compensation.
Gaynor currently contributes regularly to www.MichNews.com, www.RenewAmerica.com, www.WebCommentary.com, www.PostChronicle.com and www.therealitycheck.org and has contributed to many other websites. He has written extensively on political and religious issues, notably the Terry Schiavo case, the Duke "no rape" case, ACORN and canon law, and appeared as a guest on television and radio. He was acknowledged in Until Proven Innocent, by Stuart Taylor and KC Johnson, and Culture of Corruption, by Michelle Malkin. He appeared on "Your World With Cavuto" to promote an eBay boycott that he initiated and "The World Over With Raymond Arroyo" (EWTN) to discuss the legal implications of the Schiavo case. On October 22, 2008, Gaynor was the first to report that The New York Times had killed an Obama/ACORN expose on which a Times reporter had been working with ACORN whistleblower Anita MonCrief.