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posted by FODU @ 5/28/2006 10:16:00 AM
260 comments
260 Comments:
This article was published in Novemeber in the ‘Media Meditations’ section of Chatham County Line.
60 Minutes misses real Duke lacrosse story
I broke a long standing self-imposed rule the other night by watching “60 Minutes” for the first time since 1979. The reason, of course, was the Duke rape case.
I confess the show was a little more accurate than it used to be and on the whole gave the lacrosse team suspects a fair shake. I was not shocked when some local reporters did not see it that way. On the other hand, no one, police or the press, has turned up one single clue linking the defendants to the victim.
Only a feeble minded judge can allow the line-up identifications as evidence – where only Duke lacrosse team members appeared. There is no DNA to link the defendants to anyone. There is only the word of the lady in question. That ain’t much of a case.
Like all out-of-town shows, 60 Minutes, made an effort to show the real reason for all the charges and counter charges. It all started with a bunch of drunk, rich, obnoxious Duke college twits from Up North – Yankees to the uninformed and damn Yankees if you prefer.
I guess the 60 Minutes legal stuff advised earlier problems had nothing to do with the rape. Ed Bradley, the TV guy, said as much and did not even mention or face the truth.
And if you were a cop, just what would you have done? Those preppy jerks had a fine good time keeping neighbors awake at night. When police came to complain, they were ignored. The twits thought it was just so wonderful fun to urinate over the wall across the street or on the sidewalk and especially in neighbors’ flower pots.
And they talked dirty and gave everybody the finger and got drunk and just had a fine old time with no regard for neighbors or common decency. After several unsuccessful visits to maintain order, the police waded in arrest the whole damned lot – which they should have done.
And what happened? The rich Duke kids with their high priced rich lawyers got released because of some warrant technicality and then what do the twits do? They thumbed their nose at the law, at the courts and at the police who were left empty handed and the neighbors who wanted a little peace and quite. The twist went out of the door practically saying “yay yay yay yay yay” and started partying again. The neighbors must have felt like prisoners.
These events were reported regularly in the daily press and became common knowledge.
And then it happened. A girl said she was raped at the very house where all those rich drunken Duke twits gathered. And if you are a good cop and a good citizen –and I claim to be a good citizen—you say, “By God we got you this time,” just like I did. Duke’s president must have said the same thing because he fired the lacrosse coach and cancelled the season. I think somewhere under his breath he said, “By God, I got you this time.”
The facts now point to a massive rush to judgment and we have to admit that rich obnoxious Up North juveniles have rights too.
I don’t blame the police at all. I am sure I would have done the same thing. Maybe those twits now understand how they got themselves into such a mess, how good manners and common decency could have saved them lots of grief.
Well, “60 Minutes” missed the boat – but so has everybody else.
R.L. Taylor is a regular contributor to Chatham County Line. He has been a newspaperman for more than 50 years, working as a reporter, editor and publisher. He has also been an advisor to newspapers in Slovakia, Romania and Russia.
This lettler was published in response to R.L. Taylor's op-ed (see above) in Chatham County Line. It appeared in the 'Letter to the Editor' section of that paper, in December 2006.
To the [Chatham County Line] Editor:
Chatham County Line missed the real Duke story. I must break my long standing self-imposed rule about confronting journalists who are irresponsible and dishonest. Let’s talk, R.L. Taylor, about the Duke Lacrosse hoax and the facts!
Contrary to your version of events, the Durham police were not summoned to the lacrosse house that night because of neighbors’ complaining about noise or flower pots being used as urinals. In reality, the second stripper called 911 anonymously and reported that she and her “girlfriend” had been called names as they strolled by the house at 1am. Consequently, police arrived at the lacrosse house two minutes after receiving the call. What did they find? A silent, dark house with no students making noise outside of it, no drinking students visible whatsoever! Nothing!
As to the frequently reported public urination citations that some players may have received on occasion, these were most likely handed out at the Saturday pre-football game event known as Tailgate, where various groups gathered in a fenced in area with limited port-a-potties for the masses of kids who attend. Therefore, some of the male students let the girls use the potties and they would relieve themselves in the bushes. Durham cops on bikes would drive up and write citations for these males – an easy way to add income to Durham coffers. Many Duke boys got this ticket for urination – not just lacrosse players.
The “girl” you refer to is almost 30, a convicted car thief, a habitual pole dancer at local strip joints, and a performer of private sex shows for men in hotel rooms, etc.
She has made false accusations of rape before. She is known for abusing narcotics, alcohol, and muscle relaxants. The second stripper had the police called again that night because she could not forcibly remove the “girl” from her car in the Kroger parking lot. The policeman on the scene tried to take the “girl” to the drunk trunk. No “rape, sodomy, strangulation or beating” was mentioned to him. That story developed later.
The Duke student-athletes or Northern “twits,” as you refer to them repeatedly, found themselves in this “mess” because of unconscionable, illegal acts by a district attorney who engaged in race-baiting before a close primary, corrupt police tactics, and Duke’s wet behind the ears president who was intimidated by 88 of his faculty, who for perverse reasons rushed to believe a drunken sex worker over their own carefully selected Duke students.
You, R.L. Taylor, talk about good manners and common decency. If you possess either of those qualities, you will now apologize to the wrongly indicted students, the entire team, and the tarnished university, and Northerners in general.
One lesson from this lacrosse fiasco is that journalists like you, R.L. Taylor, feel free to slander and demean these boys because they are privileged and Northern. What sort of a journalist purposely maligns young men to turn people against them because they are guilty of being rich, Northern, and Duke athletes? Journalists who deceive the public should be “tarred and feathered” – an old southern (and British) practice reserved for scoundrels, usually white scoundrels who con the public.
Very good response to a most vicious op-ed! His op-ed tells us quite a bit about the author. This is the guy you definetly want to stay away from. Why doesn't he move to Russia, Romania or Slovakia?
Who is this creep, R. L. Taylor? I've never heard of him. Can't believe this guy is in possession of a passport, much less ever traveled to a foreign country.
If people from the northeast area of the U. S. bother him, no doubt dealing with someone from another part of the globe must have left him totally nonplussed.
Moreover, it's obvious that he hasn't even been following the case.
His attempt to use down-home humor makes my skin crawl. He's totally jumped the shark on that one.
Untidy and sloppy "journalism".
Debrah Correll
The guy is just a bad writer. I am not a down home humor person either, but he did say there is not a shred of evidece to the accusation. Also commented that only a feeble minded judge would not throw out the IDs. Sure hope Oz is not feeble minded.
I wonder if this letter can be used, somehow, as a cause for "venue change." I realize, the author is not from Durham county but he is making a very good case for a venue change.
The best example I've seen lately were the comments by Herald Sun editor Greg Childress saying that he didn't care about the lacrosse players being falsely charged. As if "so what?".
That paper is in Durham and is read by the very people who will make up the jury pool. Childress' comments reflect what their editorials have always been about. This paper bears a great responsibility because they have sought to help ruin the lives of these three young men.
The Herald Sun is front and center as to why there is a need for a venue change.
This letter was published in Herald Sun's "Letters to the editor" section on December 9, 2006.
Give a little back
Now that Robert Steel has accepted the additional role of the Treasury Department in charge of domestic finance, it is incumbent upon him as a chairman of Duke board of trustees to voluntarily reduce whatever income he received from Duke for his reduced responsibility.
I suggest that he establish a scholarship with the funds for needy graduates of Durham’s high schools who are admitted to Duke.
Allan Lang,
Durham
This letter was published in Herald Sun on DEcember 16, 2006.
Nifong's petty motive
I have often asked myself why the accuser in the Duke lacrosse rape case told police no condoms were used in the alleged attack, even though condoms would have explained the lack of DNA evidence. Nine months later I have my answer. A recent Herald-Sun story submits that Mike Nifong is either unjustly maligned for his dogged prosecution of the players, or is grossly incompetent.
I submit that he is neither. He simply chose the wrong case to draw attention to himself and, having done so, is too proud to admit his mistake. Nifong needs to at last do the right thing and drop this case. He can't possibly win. His only motivation for continuing is to bleed the families of the accused as much as he can.
Nifong is a petty and vindictive man. And when this is over, he will be a beaten man, with neither reputation nor credibility.
DAVID HIGHLANDS
St. Petersburg, Fla.
David Highlands may have said more than he realize when he said that Nifong is trying to "bleed" the families of the Duke 3. I am beginning to think that Nifong's game plan (as well as the game plan of the City and County of Durham) is to drag this case out long enough and to make it so expensive that the Duke 3 will drop any claims they might have against Nifong, the City and the County (as well as various police dept. personnel) in exchange for Nifong dropping the charges. I don't know how this helps Nifong with any disciplinary proceeding he faces.
"make it so expensive that the Duke 3 will drop any claims they might have against Nifong, the City and the County "
Once the case is dismissed, legal actions/expense against Nifong should be borne by either the State of NC or the federal Gov't.
In the alternative, I would gladly donate to such a fund.
Regardless, the 3 families should be spared the expense, having suffered enough financial damage.
This letter was published in Herald Sun on December 18, 2006.
DA's case looks shaky
How much more evidence does our newly elected district attorney need to finally admit he mishandled and possibly violated the law in the Duke lacrosse case? A man who had everything to say before the evidence came in, now clams up when confronted with evidence that appears to clear the Duke players. Nifong says that he will "respond in court."
It's a shame to all involved that our DA failed to follow proper procedure and has not yet learned when to speak and when to be quiet. A simple lie detector test administered four times (while not admissible) would have pointed the way for Nifong. He actually refused a player's request to take one. Stubborn? Egotistical? There are better words.
A bigger shame still will occur if and when it is proven that the real misconduct in this case was produced by Mike Nifong. It might be early, but at this point I have to ask, what in the world were voters in Durham thinking?
I was jokingly introduced to our DA by a mutual friend recently. I will gladly shake his hand again and apologize if he produces evidence convicting the Duke players. It certainly ain't looking likely at this point.
Mike Cotton
Durham
December 18, 2006
Great letter by Mike Cotton!
Duke Parent
nifong is out of control!
This article was sent to FODU by Professor Banzhaf, on December 18, 2006.
Duke Rape Case Could Create Major Civil Liability
Not Only For DA Nifong, But Also For Durham County
As the rape case against three Duke lacrosse players continues to unravel, and instances of apparent prosecutorial misconduct multiply, it appears increasingly likely that the accused students will be able to recover civil damages against the county and perhaps also the district attorney, says the public interest law professor who has successful orchestrated legal actions against several major governmental figures, including former Vice President Spiro T. Agnew.
"Although prosecutors generally enjoy absolute immunity from civil liability for violating the constitutional rights of defendants, there are instances -- and this may well be one of them -- where that immunity doesn't apply," says Law Professor John Banzhaf. Moreover, Durham County, NC, does not have absolute immunity, and so the county could be held liable for millions of dollars in civil damages even if District Attorney Michael Nifong is protected from law suits, notes Banzhaf.
"Generally, district attorneys --acting within their narrow role as prosecutors -- have absolute immunity, and cannot be sued even if they violate a defendant's constitutional rights intentionally, in bad faith, and with malice. This means that, even if it can be proven that Nifong engaged in gross prosecutorial misconduct in prosecuting the students while knowing they were innocent, and did so wrongfully and only for political purposes, he might not be held civilly liable."
On the other hand, the U.S. Supreme Court has carved out an exception when a prosecutor is acting not as an "advocate" performing functions intimately connected with the judicial phase of the criminal proceeding, but rather as an "investigator" or "administrator." In such cases he enjoys only a qualified immunity, and can be held liable if his misconduct violated clearly established legal standards of which a reasonable prosecutor would have known.
Under this so-called functional approach, actions taken before probable cause is established make the prosecutor an "investigator," entitled only to qualified immunity. After probable cause is established, a prosecutor may be acting as either an "investigator" or an "advocate," depending on the function being performed, and thus the function being performed after probable cause has been established determines whether or not absolute immunity applies.
For example, since only qualified immunity applies to functions such as providing legal advice to the police and cooperating in police investigative work, prosecutors who conspire with police to fabricate evidence during the preliminary investigation, or made false statements of fact in an affidavit supporting an application for an arrest warrant,
may enjoy only qualified immunity -- and thus be held liable. It would also appear that granting numerous interviews with the media is outside the protected role of an advocate, especially if the information goes far beyond what is stated in official court documents, and includes even name calling.
Even if Nifong is found to be shielded from civil liability by absolutely immunity, such immunity does not apply to the county which he represents, so Durham County, NC, could wind up being civilly liable even in Nifong escapes liability. Considering the emotional suffering -- not to mention the legal and other out-of-pocket expenses -- this criminal proceeding has subjected the defendants to, a jury could award a very significant verdict to compensate them, says Banzhaf.
Congressman Walter Jones [R-NC] has called for a federal investigation to determine if Nifong's actions constituted prosecutorial misconduct and denied the students their civil rights. In his letter to the Department of Justice, he spells out allegations which could make Nifong personally liable:
“First, Mr. Nifong directed the Durham Police Department to knowingly violate suspect identification procedures for police personnel in North Carolina,” Jones continued. “These procedures require that during any suspect identification process, a suspect’s photo must be shown with those of non-suspects. Mr. Nifong not only directed that this not be done, he also directed the police to tell the accuser that she would only view photos of Duke lacrosse athletes who were at the party. By doing so, Mr. Nifong ensured that the accuser could not make a mistake no matter who she identified because she would inevitably identify Duke athletes.”
Since all these actions occurred during the initial investigatory phase, Nifong cannot claim absolute immunity with regard to them, notes Banzhaf.
More recently, the head of a private DNA laboratory said under oath that he and Nifong agreed not to report DNA results favorable to Duke lacrosse players charged with rape, even though this violated the protocols of his own lab.
Moreover, the U.S. Supreme Court, and the Rules of Professional Conduct governing N.C. lawyers, require prosecutors to give the defense all favorable evidence. N.C. law goes further by requiring Nifong to hand over all evidence. Since these actions appear to have involved investigation and administration -- rather than the prosecution of the case -- Nifong may likewise not be entitled to absolute immunity with regard to this action.
PROFESSOR JOHN F. BANZHAF III
Professor of Public Interest Law
George Washington University Law School
Professor John F. Banzhaf III
Good analysis by Prof. Banzhaf!
Today we have Brodhead's statement the "Duke 3" are presumed innocent. Is this some kind of tepid response due to a) the incredible hit the prosecution's case took in Court, or b) the incredible hit Duke is taking in the admissions arena? Any way you cut it Brodhead's administration has failed Duke students,Duke parents and Duke alumni. Sorry Dick, but I don't want your signature on my child's diploma
This letter was published in Herald Sun on December 19, 2006.
Put Nifong in prison
District Attorney Mike Nifong should be put in prison for trying to send three innocent men to jail. He would then know how it feels to be railroaded.
This woman has been found out, yet he still pursues this case. They should be locked in the same cell together, him for using the case to get the black vote, and her for extortion.
Black citizens should get on the DA. He's an example of the widespread injustice in America, which is usually directed toward blacks. The problem is they seem to want revenge on whites instead of justice. That makes them as bad as the rogues in uniform and Nifong. Two wrongs don't make a right.
Deborah Evans
Oak Hill, W. Va.
December 19, 2006
This letter was published in Herald Sun, on December 19, 2006.
Nifong's misconduct should be investigated
I certainly hope the North Carolina legislature opens an investigation into the actions of Durham District Attorney Mike Nifong and his prosecution of the Duke lacrosse players. Overzealous prosecutors like him have railroaded many innocent persons into prisons. His past prosecutions need to be investigated for improper conduct and even withholding evidence from defendants.
I also hope the legislature will allow Nifong, Durham and the state to be personally sued by the defendants for the improper actions of Nifong after they are found innocent. One wonders what agenda drives a person like Nifong to push a non-case with such zest.
Is it a book or a run for the state legislature?
John Kitz
Lancaster, Ohio
December 19, 2006
IMHO it is the Duke Administration and faculty that should be punished...particularly the so-called gang of 88. These students...all of them....had a presumption of innocence. But the politically correct faculty and administration didn't let either that, or their own ignorance, stop them from wading in to this fight. The students who were suspended need to sue Duke University for damages. They have lost a year of their lives, meaning thet will be gainfully employed one less year on the end...generally the most economically rewarding one before retirement. Moreover, the actions taken against them will have lasting consequences on their employability. Surely at least two of these students have cause for damages.
And as for parents of prospective students, why would anyone wish to send their child to a place where any local demagogue DA can play the race card and destroy their lives, for his own political advantage? With 88 faculty members and the School President more than ready to bring the rope for the lynching.
Alumnae of Duke need to withold their donations and send their kids elsewhere, until someone cleans house at Duke.
This letter was published in Herald Sun on December 20, 2006.
Questionable leadership during Duke LAX mess
Visiting the Duke Athletics Web site earlier today, I was heartened by the promise of a link to "additional comments" by President Richard Brodhead that were not included in Ed Bradley's "60 Minutes" report. I was "heartened" because as an alumnus of Duke University, I was shocked that President Brodhead failed to capitalize on the rare opportunity provided him by "60 Minutes"-- most notably, to show millions of viewers that he does understand the most fundamental principles of our nation's system of jurisprudence, that he is not an impotent bureaucrat held captive by the agendas of the most radical members of his own faculty, that he is sorry for the rush to judgment that his politically calculated statements and actions stoked rather than calmed, and that he does indeed value well-administered justice, and in the end, the lives of three young men, more than thoughtless compliance with the prevailing winds of the media.
I could locate no "additional comments" on the link provided on Duke's site. But that is really beside the point. The statements of a university president -- edited or otherwise -- should be well-considered and welcome accountability.
In the days, weeks and months following the "incident," Brodhead has consistently abdicated his core responsibilities as a university president -- most notably abandoning students in his charge to the hate-spewing mobs teeming with PC-crazed members of his own faculty.
A tendered resignation -- or official and public apologies to those you abandoned out of callous political calculations -- are the only actions that could begin to redress the damage you have done.
Gordon Runte
Washington, D.C.
December 20, 2006
This letter was published in Herald Sun, on December 20, 2006.
Where is the outrage?
Shortly after the rape allegations against the Duke lacrosse players there were marches in the street, all claiming injustice. As it seems to be turning out the injustice has been against the lacrosse players and particularly the three men charged with the rape.
The prosecutor, Mike Nifong, has violated their civil rights and slandered their names to the world. Where will justice come from for these men? Why are the citizens of Durham not marching now to protect the civil rights of these men?
The photo identification was clearly done inappropriately. But the failure to properly do the DNA tests through a state lab and then give full disclosure of the results should be a criminal offense.
Pat O'Rourke
Clarkston, Mich.
December 20, 2006
This article was sent to FODU by Professor Banzhaf on December 20, 2006.
Nifong and Durham May Be Liable Over Duke Rape Case
(Media Begin Focusing on Law Suits By Defendants)
Despite -- or perhaps because of -- increased reporting about the criminal law aspects of the Duke students' rape proceeding, the media are finally beginning to focus on the potential civil liability of Durham County, NC, and of District Attorney Michael Nifong, especially since it appears that Nifong will not enjoy the absolute immunity which usually shields prosecutors guilty of violating the rights of defendants from personal civil liability.
Although prosecutors have traditionally enjoyed absolute immunity, in order to shield them from frivolous and vexatious law suits by defendants they tried, two recent commentators have pointed out that this immunity may not apply to Nifong under the unusual circumstances of this proceeding.
The concept of holding Nifong personally liable for violating the civil right of the defendants was first advanced by public interest law professor John Banzhaf, who has successfully orchestrated legal actions against several major governmental figures, including former Vice President Spiro T. Agnew, who it was also widely believed could not be held civilly liable for his wrongdoing.
Banzhaf's legal analysis was subsequently discussed on a legal forum and picked up by the Friends of Duke University and Legal Ethics.
At about the same time that Banzhaf's message was being picked up by the news media -- Lincoln Tribune -- very similar sentiments were being aired on FoxNews in a piece suggesting that the Nifong situation might even cause reconsideration of whether prosecutors should continue to receive absolute immunity.
In related developments, it was announced that the Justice Department was considering a request from Congressman Walter Jones [R-NC] for a federal investigation to determine if Nifong has violated the civil rights of the defendants: Click here.
Also, the North Carolina State Bar Association has received at least 17 formal complaints seeking disciplinary proceedings against Nifong, and the American Society of Crime Laboratory Directors/Laboratory Accreditation Board (ASCLD/LAB)is now investigating the accreditation of the state's crime lab in light of testimony under oath that the laboratory, at the suggestion of Nifong, withheld the results of certain DNA tests: Durham in Wonderland.
It's not unusual for prosecutors to deliberately violate the civil rights of criminal defendants whom they know cannot employ lawyers to seek redress in civil court, and who would not be very sympathetic plaintiffs if they did, says Banzhaf. Here, in contrast, the defendants can afford highly qualified counsel to bring legal actions under 42 U.S.C. 1983, and the students have garnered sympathy among many newspapers, columnists, Members of Congress, and others.
Indeed, notes Banzhaf, their plight warranted a skit on SATURDAY NIGHT LIVE asking how much of a joke is Mike Nifong: SNL.
Here the prosecutor illegally used a stacked identification lineup -- similar to a stacked deck of cards -- so that he could not possible lose, since any person the complainant selected was a lacrosse player at the party who could be charged with a crime, notes Banzhaf.
He also illegally -- and apparently unconstitutionally -- withheld DNA evidence, typical of criminal practice decades ago when prosecutors would frequently hide evidence and/or to suddenly spring it on defense attorneys for dramatic effect in the middle of the trial.
PROFESSOR JOHN F. BANZHAF III
Professor of Public Interest Law
George Washington University Law School
This letter was published in Herald Sun on December 21, 2006.
Paper got it wrong
So, the truth is finally coming out? District Attorney Mike Nifong essentially "wrote" the DNA report so that exculpatory evidence would remain hidden.
The more I read about this case and this paper's coverage of it, the more it becomes apparent that, at end, your editors and Nifong will be the only ones caught with their pants down.
You guys lost your poise and your journalistic credibility when you joined the wrongheaded hew and cry and became cheerleaders for Nifong's idiotic handling of this case. Nifong used this sorry situation for his political advantage and you are complicit.
Nifong should be ashamed to show his face in public.
Your paper's punishment will be the fact you'll have to print a continuing series of stories on just how your editors, and your friend, Nifong, got it wrong, wrong, wrong.
Mike McNew
Marina, Calif.
December 21, 2006
This lstter was published in Herald Sun ob December 22, 2006.
Nifong's phony case
The judicial process in the lacrosse players' rape case was perverted by District Attorney Mike Nifong. Consider: There is absolutely no evidence that any crime was committed. There is not one witness who supports the accuser's claim. A gang rape in the space of five to 10 minutes that leaves the victim's clothing intact and body free of the marks of violence is logistically impossible.
This case should never have gone from the police investigation to the prosecutor, and would not have if not for Nifong's grandstanding. Your continued support of him is almost as unconscionable as his blind pursuit of this non-case.
David Highlands
St. Petersburg, Fla.
December 22, 2006
This letters was published in Herald Sun on December 22, 2006.
Venue change is best
The "change of venue" motion filed Dec. 15 by the defense attorneys in the Duke lacrosse case is absolutely warranted. However, I question how much a "change of venue" will impact the verdict of the case. The defense lawyers argue that the two accused players are entitled to a jury, "whose members have not formed preconceived opinions about these cases."
Although the national media frenzy that followed the incident last spring may have already forged opinions and sympathies in the minds of people far removed from the Durham area, I am hopeful for a favorable response to their request and a just trial for both parties involved.
Naomi Barrowclough
Durham
December 22, 2006
This letter was pubished in Herald Sun on December 22, 2006.
Nifong's shameful ways
Shame on District Attorney Mike Nifong for railroading the Duke lacrosse players and withholding important DNA information. I understand the knee-jerk reaction for wanting to right civil rights wrongs of the past, but shame on Nifong. He's no different than the white supremacists of the past. It's just this time, those accused are a different color.
Jodi Moisan
Muncie, Ind.
December 22, 2006
This letter wa spublished in Herald Sun on December 22, 2006.
Lacrosse case erodes trust in justice system
Recently, U.S. Rep. Walter Jones of North Carolina wrote to U.S. Attorney General Alberto Gonzales requesting the Department of Justice review Durham District Attorney Mike Nifong's actions to determine whether they constitute prosecutorial misconduct and whether the rights of Duke lacrosse players Collin Finnerty, Dave Evans and Reade Seligmann have been violated. Jones was the first congressman or senator to have the courage to do this and I commend him.
I can think of no better time for government to help three families, namely the Finnerty, Seligmann and Evans families, than right now. It does not just take a village to raise our children. It takes a nation.
What is going on in Durham is not just a North Carolina issue. It is a national issue and a national disgrace. It affects all Americans who treasure our liberties and have faith in our justice system. If we lose that, we can lose everything. What will become of our country?
In this season of peace and hope, I am praying that other political leaders will have the courage to join Jones in requesting an investigation by the Department of Justice. Our nation is watching and waiting.
Joan M. Collins
Garden City, NY
December 22, 2006
This article was sent to us on December 22, by Professor Banzhaf.
Nifong Drops Rape Charges After Discussion of Personal Liability
Law Prof's Idea to Sue Nifong May Have Been Factor in Decision
Durham County, NC, District Attorney Michael Nifong has just announced that he has dropped rape charges against three Duke University Lacrosse players. The action comes within days after the idea of suing him, and holding him personally liable for violating the civil rights of the students, began to be aired.
Public Interest Law Professor John Banzhaf, who first proposed the law suits, said that the threat of such litigation, and the huge monetary damages for which Nifong might find himself personally liable, may have been a factor in Nifong's decision today.
However, Banzhaf also acknowledged that growing cries from many other quarters for him to be dismissed as the prosecutor on this case to avoid a conflict of interest, calls for a Justice Department investigation, bar complaints, and an on-going investigation of the accreditation of the crime law concerning Nifong's involvement with its decision to withhold certain evidence, were probably also factors.
It appears that certain other charges against the students will remain in place, at least for now, but it would certainly not be a surprise if they were also subsequently dropped. Banzhaf said that he is very pleased by this latest development, which proves once again that the threat of legal action can be a powerful weapon.
"Legal action can be a two-edged sword, and it appears the Nifong may finally be getting the point," says Banzhaf.
For an earlier press release by Professor Banzhaf, click here.
PROFESSOR JOHN F. BANZHAF III
Professor of Public Interest Law
George Washington University Law School
This article was sent to FODU by Professor Banzhaf on December 23, 2006.
Nifong Sets Stage For Final Bailout on Duke Rape Case
Drops Strong Hints of Face-Saving Exit Strategy
Embattled Durham County, NC, District Attorney Michael B. Nifong, forced to dismiss the central charges of his rape case against three Duke University lacrosse players, has dropped strong hints about a scenario in which he would drop the remaining charges and still manage to save face, and possibly even avoid an investigation by the State Bar Association and the U.S. Department of Justice, says public interest law professor John Banzhaf.
Nifong told the New York Times that "he would not hesitate to drop all the charges if the accuser expressed doubt about the identity of the men she has accused when she sees all three defendants at a pretrial hearing set for February. 'If she came in and said she could not identify her assailants, then we don’t have a case,' Mr. Nifong said. "Since he dismissed the rape charges Friday when the accuser's certainty first waived, this sound like he's setting the stage for further dismissals," said Banzhaf, who said the following statements by Nifong make it even clearer that he is seriously considering this course of action.
As the Times reported it on Saturday: Mr. Nifong said he intends to ask the woman about her level of certitude after February’s hearing. “It’s an opportunity to say, ‘Yes, I’m 100 percent certain these are the people who did it,’ ” he said. “It’s also an opportunity to express doubt.” Given the absence of physical evidence, he said, any doubts from the woman could end the prosecution for one or more of the defendants.
It's hard to see how there could not be doubts, says Banzhaf, since the accuser initially asserted at least five different times -- to the first doctor who saw her, to the sexual-assault nurse, to the sexual-assault doctor, to detectives, and in her own handwritten statement to the police -- that the objects which had penetrated her had all been penises. It was her uncertainty about that point which forced Nifong to dismiss the rape charges. But, notes Banzhaf, there has already been a great deal of uncertainty about her identification of the three suspects. Here's how the New York Times summarized it:
The police showed her three sets of photographs during the first three weeks of the case, one with 24 lacrosse players, one with 12, and, after she failed to identify any suspects, one with all 46 white players. She identified only one person with 100 percent certainty in two photo arrays as having been present at the team party. But that person, Dan Ross, was not there. He was 24 miles away in a dorm room in Raleigh.The woman also identified the wrong player as having held up a broomstick while making a sexually crude remark to the two dancers. As previously reported, she did not identify two of the defendants — Mr. Seligmann and David F. Evans — as attackers when she saw their pictures in the first photo arrays. She said it was harder than she thought because “the people in the photos looked alike,” police investigators wrote. Yet she later identified Mr. Seligmann with 100 percent certainty and Mr. Evans with 90 percent certainty, saying he “looks just like him without the mustache.” Mr. Evans has never had a mustache. The final identification procedure contained photographs the police had taken of all 46 white lacrosse players. By not including any filler photographs of people who could not possibly be involved, the procedure appeared to violate Durham police, state and national standards for photo lineups and was called by the defense “a multiple-choice test in which there were no wrong answers.”
With this, and the many other inconsistencies in her testimony, says Banzhaf, it is hard to see how there would not be sufficient doubt about her ability to say beyond a reasonable doubt that each of the three defendants caused a penetration -- now, by some object other than a penis. "This would give Nifong a face-saving way to dismiss the remaining charges, possibly avoid an investigation by the Bar and the Justice Department, and finally put all this behind him," argues Banzhaf.
"Nifong clearly has a tiger by the tail, and its very difficult to let go without being bitten. Dismissing the charges in two separate stages, in each case blaming the dismissal upon the accuser's inability to testify to what happened beyond a reasonable doubt, is probably his best
exit strategy."
Banzhaf previously noted that Nifong's dismissal of the rape charges occurred just days after the idea of suing him, and holding him personally liable for violating the civil rights of the students, began to be aired in the media and on the Internet. Banzhaf, who first proposed the law suits, said that the threat of such litigation, and the huge monetary damages for which Nifong might find himself personally liable since his actions fell outside the zone of absolute immunity, may have been a factor in Nifong's decision.
However, Banzhaf also acknowledged that growing cries from many other quarters for Nifong to be dismissed as the prosecutor on this case to avoid a conflict of interest, calls for a Justice Department investigation, bar complaints, and an on-going investigation of the accreditation of the crime law concerning Nifong's involvement with its decision to withhold certain evidence, were probably also factors. To these Nifong must now add a call by Duke University, and by the local
N.A.A.C.P. representative, that he recuse himself.
PROFESSOR JOHN F. BANZHAF III
Professor of Public Interest Law
George Washington University Law School
This letter was published in Herald Sun On December 23, 2006.
Mind your business
I understand that our district attorney, Mike Nifong, is under the scrutiny of the entire nation. I also understand that people are going to want to comment about something that is on their local television stations, even if it is not local news to them.
But, I am tired of reading letters from Ohio, Arizona, and across the nation attempting to tell me how I should feel about my district attorney. The truth is, they don't live here, they don't know what goes on in our fight against crime on a daily basis, and they don't know our district attorney.
This is not a letter of support, it is more of a letter of disgust from these people who feel the need to tell me how I should feel about my daily affairs and political officials.
Mike Silver
Durham
December 24, 2006
This letter was published in Herald Sun On December 23, 2006.
Sick of lacrosse case
I am so sick of hearing about the Duke lacrosse rape case. I thought I was pretty fed up when the local and national press descended like the proverbial locusts earlier this spring.
Admittedly I was peeved because I couldn't get my hair done at the Artistry Academy located on the same street. But that was April. This is December and I will be darned if I didn't see the beginnings of another media parade.
Here's a question. What is so newsworthy about this story? Has reporting this story ad nauseam effectively changed the relations along the divides of race, gender and class in this city? Someone please explain to me how this "news opera" contributes to information that effectively governs the daily course of our lives.
For me, as an instructor of mass communications, the biggest shame of this news debauchery was that pioneer African American journalist Ed Bradley's last piece for "60 Minutes dealt with this episodic, trivial pursuit. This case is not about truth and justice yet ironically it still is about the American way: money. I am sure if these indicted players hailed from lower tax brackets, there would be no high price defense team.
W. Russell Robinson
Durham
December 23, 2006
This letter was published in Herald Sun On December 23, 2006.
Critics from elsewhere simply need to get a life
I have read in your editorial section, over the past several months, many letters concerning the Duke lacrosse case, written by people from around the nation. Their "interest" has puzzled me. Without fail, every one of these letters is pro-defense and vehemently anti-prosecution. Who are these busy-bodies? Do they think they have the right to tell us what's going on around here?
Do I smell a rat? I could not care less about the outcome of this thing, but I do know that this team of gun-slinging defense sharks have shown a strong ambition to spin this entire saga by whatever means to their gain. I would not be at all surprised if they have put out a mailer to their colleagues around the country to fill our editorial pages with the kind of spin acceleration that serves only as defense propaganda.
These letters also have a strong propensity to denigrate local government, posing them as bumbling idiots and shoddy bureaucrats. How many of them have ever even been here? Why are their lives so boring that Durham consumes them?
Clifton Hunt
Durham
December 23, 2006
This letter was published in Herald Sun on December 26, 2006.
Where's the outrage over Nifong's mistakes?
I found it striking that rather than display any outrage as a normal person would over court testimony that District Attorney Mike Nifong conspired with an outside DNA lab to hide exculpatory evidence and resist turning it over to the defense, your Dec. 19 editorial snarkily suggested that defense attorneys wanted "Cliffs Notes."
State law requires the "results" of every DNA test be reported by the lab and turned over to the defense without a motion to compel. "Results" is not the same as raw underlying data. I sincerely hope that the next time your editorial writer goes to the doctor for tests, that rather than get a "results" report from the physician or clinic, they hand him stacks of raw graphs and lab printouts and let him ferret the meaning for himself.
Oh, and if a reporter is assigned a story, he or she should feel free to just dump the notes and tapes on his desk. After all, if the data is there, no report is needed, right?
The "Duke Lacrosse Three" are going to own Durham. I can't wait.
Diana Magrann
La Palma, Calif.
December 26, 2006
This letter was published in Herald Sun on December 26, 2006.
Lucky to have Bob Steel
Under the headline "Give a little back," The Herald-Sun printed a letter last week encouraging Duke board of trustees chairman Robert Steel to "voluntarily reduce whatever income he receives from Duke" now that he has accepted the role of undersecretary of the U.S. Treasury Department. The writer suggested that Steel should establish a scholarship with these funds for needy Durham students who are accepted to Duke.
First, I would point out that Duke trustees receive no compensation at all for their service on our board; in fact most serve at great personal expense due to travel and lodging costs. But that fact notwithstanding, Bob Steel is one of Duke's most generous donors ever to scholarships, having committed millions to the current Financial Aid Initiative. Prior to his accepting this post, he was an active fundraiser for this cause as well, and our success at having raised nearly $200 million of the $300 million goal was greatly aided by his help in establishing a challenge fund and encouraging the support of other trustees and alumni for financial aid.
Like me, Bob is a proud Durham native, and has also stepped forward with major gifts for the Duke-Durham Neighborhood Partnership, the Emily K Center, and other programs that have built better bridges between the university and our home community. His generosity to Duke and to Durham is often anonymous, but in 26 years of working here I have never seen a finer community spirit.
We are lucky to have Bob Steel at the helm of both our Duke trustees and our U.S. Treasury Department.
Susan Cranford Ross
Durham
December 26, 2006
The writer is director of financial aid development at Duke University.
From Herald Sun:
We're past vigilantism
Clifton Hunt decries the number of pro-defense letters in the Duke lacrosse case. It is curious why he might not have reasoned that this has occurred because the facts of the matter have commanded a huge response, urging a closer examination of the facts.
Hunt goes silly calling defense lawyers gunslinging propagandists who have never set foot in Durham County. For one, Joe Cheshire and his family have been around these parts quite awhile, and, in any case, the accused have a right to defense no matter where their qualified lawyers are from.
By the sound of it, Hunt doesn't seem to care one way or the other if the Duke men were just strung up by vigilantes. I guess it might be news to him that the people of North Carolina are long past that kind of justice.
KRIS CHRISTENSEN
Durham
December 27, 2006
From Herald Sun:
Botched investigation
I thought San Antonio, Texas had more nutball public officials than any city, but you folks are a threat to taking that title away from us! Is your District Attorney an idiot, or just not up to the standards of the job? While I would not be surprised to hear that a group of jocks had gone out to get themselves in trouble, I am surprised that DA Mike Nifong has botched an investigation or launched one that should have not seen a court.
Three things have been made clear. 1) Your community needs to evaluate your district attorney and his staff. 2) The lacrosse players would have been better off had they gone to a movie than to have had the ill-fated party they sponsored. 3) The stripper should have considered a better course in life. All three have put themselves in harm's way. Your community has a lot to be proud of.
LARRY NOLAN STEWART
San Antonio, Texas
December 27, 2006
From Herald Sun:
Where the blame lies
I have often wondered how injustices against innocent blacks could have been committed in the past. The Duke fiasco has taught me that mob mentality, prejudices and emotions have no place in our justice system. This case, like many from the past, is an injustice brought upon by the perfect storm of envy, hatred and prejudice.
There are a select group of agenda-driven people who should bear all the responsibility for the damage and pain this has brought upon the families involved, Duke University, and the fair minded people in the Durham community.
The first to accept blame should be the black community and feminists that demanded someone be charged because of the color, sex and perceived wealth of the individuals accused. Remember the pot bangers, the black community church meeting and the NCCU forum? No one cared about an investigation.
Next on the list is Mike Nifong. Instead of conducting a normal investigation, Nifong used the community's emotional and prejudiced mindset to win an election. A DA's job is to seek the truth, not pander to the emotional racism, class hatred and wealth envy among the less intelligent individuals in the community.
Also, The Herald Sun is culpable in this political correctness gone wild case. Throughout this perfect storm, The Herald Sun championed Nifong and this miscarriage of justice. Due to political correctness no one wanted to question the allegations because of the color and sex of the accuser. I hope all these groups are proud of themselves.
RODNEY TURNER
Durham
December 27, 2006
From Herald Sun:
Waiting for lawsuits
I am a former North Carolina resident now living in Las Vegas. I lived in Greensboro when the incident involving the Duke lacrosse players unfolded and have followed the case since then. Between news accounts, "60 Minutes," and ESPN, I am amazed that the Durham community has not called for the head of DA Mike Nifong. He has brought charges based upon flimsy accounts by the accuser and a total lack of evidence. The latest story change regarding whether or not a rape occurred just makes Nifong look like an even bigger fool.
I have to tell you that the rest of the country looks at Nifong and Durham as laughingstocks on a vigilante witchhunt. He has been proceeding without credible witnesses or evidence. I'd say the time has come for him to get off his soapbox and step down as DA. I can only look forward to the three men from Duke to turn the tables and sue Nifong and the city of Durham. What goes around, comes around!
BOB WELLS
Las Vegas
December 27, 2006
From Herald Sun:
This farcical tragedy
In his letter of Dec. 24 ("Mind your own business"), Mike Silver of Durham says: "I am tired of reading letters from Ohio, Arizona, and across the nation attempting to tell me about my district attorney." Silver should know that many of those letters come from Duke alumni.
To them, the current fiasco and its local toleration affirms the statement in the Duke University student journal some two decades ago "Let's face it. Durham is a terrible place for a great university." Other letter writers surely feel that if the local forces cannot get this matter under control, they need all the help they can get. Methinks Silver would do better reflecting seriously on why, for nine months now, the farcical tragedy is still in the national news.
JUNIUS A. DAVIS
Chapel Hill
December 27, 2006
From Herald Sun:
Hide the mess
Like a soiled diaper laying in the middle of a busy sidewalk, District Attorney Mike Nifong's political maneuvering is now exposed for all to see. Some write and say "It's no one else's business! Hide it!" Others write and accuse The Herald-Sun, "Why did you blame the baby?" Even Duke President Richard Brodhead now haughtily proclaims "something smells and should be removed!" Nifong says, "This is only a small part of it, I'm hanging on to the rest!" and perpetuates the farce.
This "sidewalk" is in Durham, our town. We have to live with this image and whether we like it or not, this affair has achieved national attention. We have become the joke of the nation and worse yet, another clear example of the injustice which is now pandemic. Political gain at any cost.
Where is the public outcry? Where is the attorney general? Where is the governor of North Carolina? Why do we not drag this DA out and "tar and feather" him? Have we all become so comfortable and complacent that we no longer care that this kind of prosecutorial behavior could be used against any of us at the whim of some ambitious politician?
IAN D. GODDARD
Durham
December 27, 2006
From Herald Sun:
People outside Durham have a duty to speak out
Durham resident Clifton Hunt's Dec. 23 letter indicating that people who do not live in Durham should, in essence, mind their own business, demands a response. His argument is too reminiscent of those made during the civil rights era stating that any problems were caused by rabble rousers from the North who didn't understand the South.
Particularly disturbing is Hunt's rhetorical question, "Do they think they have the right to tell us what's going on around here?" Not only do those of us who live outside Durham have a right to comment on the ongoing saga going on in your community, we have that duty! As Martin Luther King so beautifully articulated in his "Letter from the Birmingham jail," "Injustice anywhere is a threat to justice everywhere."
Additionally, I cannot let Hunt's slurs against the defense attorneys go unchallenged. As a young African-American attorney I take personal offense to the characterization of the attorneys as "gun-slinging sharks" and the implication that they have somehow acted in a manner that is less than ethical.
These lawyers have a responsibility to their clients, to the community and to the American judicial system to challenge your District Attorney's case at every turn.
Until North Carolina again secedes from the Union, I and every other American citizen must seek to protect the liberty of those young men in Durham, lest we become the target of an individual such as Nifong who has the power and resources to pose an unjustified threat to our freedom.
ALEXANDER HOWARD III
Dallas
December 27, 2006
From Wall Street Journal.
A Dirty Game
By STUART TAYLOR JR. and KC JOHNSON
December 27, 2006; Page A8
It's no secret that hugely disproportionate numbers of the innocent people oppressed by abusive prosecutors and police in this country are African-Americans. Now one of the most outrageous cases of law-enforcement abuse is unfolding in Durham, N.C., home of the Duke lacrosse case. And African-Americans are leading the cheers for the oppressors. Why? The poison of identity politics, plus class hatred of the prosecutor's three main victims, well-off white men falsely accused of rape by an unstable black "exotic dancer," and a deeply dishonest district attorney.
Last spring, Durham D.A. Michael Nifong, who is white, was facing a primary in a racially divided electorate. He was badly behind and out of campaign money, excepting almost $30,000 in loans from his personal funds. Then came the accuser's allegations. Mr. Nifong responded by assuming control of the police investigation and making racially inflammatory statements pronouncing the Duke lacrosse players guilty of rape. Even as evidence of their innocence accumulated, he brought rape, sexual assault and kidnapping charges that fed the racial resentments he had stoked. The black vote put him over the top in both the May 2 primary and the Nov. 7 general election.
Black leaders -- including Durham Mayor Bill Bell, the appallingly demagogic North Carolina NAACP and others -- should know better. So should the powerful, identity-politics-obsessed hard left of Duke's own faculty, 88 of whom issued a statement in April saying "thank you" to protesters who had branded the players rapists. And so should the media, most of which gleefully joined the clamor last spring.
It has been clear for many months that the rape claim is almost surely a lie. But not until the DA's dramatic dismissal last Friday of the rape (but not the sexual assault and kidnapping) charges did Mr. Nifong enablers such as the New York Times and Duke President Richard Brodhead begin distancing themselves from his oppression of three innocent young men.
How can we be confident that the charges are false? Let us count the ways: The police who interviewed the accuser after she left the March 13-14 lacrosse team party where she and another woman had performed as strippers found her rape charge incredible, and for good reason. She said nothing about rape to three cops and two others during the first 90 minutes after the party. Only when being involuntarily confined in a mental health facility did she mention rape. This predictably got her released to the Duke emergency room for a rape workup, whereupon she recanted the rape charge.
Then she re-recanted, offering a ludicrous parade of wildly implausible and mutually contradictory stories of being gang-raped by 20, five, four, three or two lacrosse players, with the other stripper assisting the rapists in some versions. After settling on three rapists, the accuser gave police vague descriptions and could not identify as a rapist any of the 36 lacrosse players whose photos she viewed on March 16 and 21. These included two eventual defendants: Dave Evans, whom she did not recognize at all, and Reade Seligmann, whom she was "70%" sure she had seen at the party, but not as a rapist.
All of the 40-odd other people at the party have contradicted every important part of the accuser's various accounts. The second stripper called the rape claim a "crock" and said they had been apart less than five minutes. The accuser told doctors she was drunk and on the muscle relaxant Flexeril, whose side effects include badly impaired judgment when taken with alcohol. She has a history of narcotic abuse and bipolar disorder, a mental illness marked by wild mood swings from mania to depression, and spent a week in a mental hospital in 2005.
In court filings last week, even Mr. Nifong conceded that, contrary to his claims since March, medical records show no physical evidence of rape -- let alone injuries consistent with the accuser's April claim of being beaten, kicked, strangled and raped anally, orally and vaginally by three men in a small bathroom for 30 minutes. Above all, DNA tests by state and private labs, which Mr. Nifong's office had said would "immediately rule out any innocent persons," did just that. They found no lacrosse player's DNA anywhere on or in the accuser and none of her DNA in the bathroom.
Yet two weeks ago we learned -- only because dogged defense lawyers cracked a prosecutorial conspiracy to hide evidence of innocence -- that the private lab did find the DNA of "multiple males" in swabs of the accuser's pubic hair, panties, and rear after the supposed rape. None of this DNA matched any lacrosse player.
After the first two photo sessions, it was clear that the accuser had no idea what her rapists (if any) looked like. By the end of March, it should have been clear to any prosecutor that there probably had been no rape at all. But Mr. Nifong had driven the black community into a rage with dozens of guilt-presuming, race-baiting attacks on the lacrosse players like this one, on March 27: "The contempt that was shown for the victim, based on her race, was totally abhorrent."
Such statements flagrantly violated North Carolina ethical rules requiring prosecutors to "refrain from making extrajudicial comments that have a substantial likelihood of heightening public condemnation of the accused." They also poured gasoline on the flames of racial rage.
Black leaders and voters made it clear that Mr. Nifong's only chance of winning the primary was to put his money where his mouth was by indicting the lacrosse players. He closed his door to defense lawyers offering evidence of innocence and rigged a multiple-choice test with no wrong answers. On March 31, he instructed police to conduct a third photo ID lineup, and to show the accuser (and tell her that she was being shown) photos of only the 46 white lacrosse players.
On April 4, when this third photo-ID process took place, the message to the accuser was, effectively: Pick three, any three. At random, if you like. You can't go wrong. This setup trashed the defendants' constitutional due process rights and specific Durham, state, and federal principles for identification procedures. To test the reliability of often-mistaken eyewitness ID's, these principles require showing at least five "fillers" (non-suspects) with each suspect and telling the witness that the lineup may or may not include a suspect. Mr. Nifong recently defended his procedure through word games, asking, "What is a lineup?"
The accuser's responses demonstrated her unreliability in ways too numerous to detail here. For one, she picked four as rapists. For another, the only player she twice identified with 100% certainty as attending the party could prove he was in Raleigh that night. But the accuser gave Mr. Nifong enough to obtain three indictments from a rubber-stamp grand jury. When he went to the grand jury, Mr. Nifong knew that the DNA results were inconsistent with the rape allegation. But he pressed ahead with the charge until the defense exposed his efforts to conceal the forensic evidence. Then he abruptly changed his theory of the crime.
The case is now unraveling so rapidly as to be ridiculed on "Saturday Night Live." Mr. Nifong is on his way to being disbarred, unless North Carolina's legal establishment wants to be held up to national scorn. He faces lawsuits and at least a remote risk of federal criminal investigation. As for Durham's black leaders, and many in the media, and much of Duke's faculty, history will mark them down as enablers of abusive, dishonest law enforcement tactics. They will share responsibility for the continued use of such tactics, mainly against black people, after the Duke lacrosse players' innocence has become manifest to all serious people and the spotlight has moved on.
Mr. Taylor, a National Journal columnist and Newsweek contributor, and Mr. Johnson, a history professor at Brooklyn College and CUNY Graduate Center, are writing a book about the Duke case.
URL for this article:
http://online.wsj.com/article/SB116719312652160303.html
Could this be the fat lady beginning to sing?
Great piece of work! Indeed, one needs to put a fork into Mr. Nifong, as the turkey is about cooked!
From Herald Sun:
Nifong must be ousted
I am a former resident of Durham, and a former deputy sheriff (11 years). I cannot believe that the citizens of Durham are not outraged, and calling for a recall election of Mike Nifong. His handling of this case is beyond poor. He rushed to file charges before the case could be investigated properly.
Why? I believe the only reason was that the primary election was in sight, and Nifong clearly wanted some type of headline that he believed would put him over the top. Now, as the case is falling apart, it is obvious that there is no evidence to uphold any charges that are still pending.
Not only has Nifong used the office of district attorney for political gain, but ruined the lives of three innocent people. Do the right thing, Durham, get this guy out of office before more bad things happen. You could be next!
CHARLES W. NASH
Chesapeake, Va
December 28, 2006
From Herald Sun:
Here come lawsuits
I think District Attorney Mike Nifong is unaware of how stupid he is making Durham and the entire South look. He should drop the obvious trumped-up case, sit down, shut up and pray he keeps his job.
These young men are going to have a field day when their time to bring charges comes, and their case will be good. Nifong had better like selling used cars, because that's exactly where he's headed.
ULDRICK EDWARDS
Atlanta, Ga.
December 28, 2006
From Herald Sun:
Editorial was frayed
Your recent editorial on the Duke lacrosse case comically concluded with the comment that the accuser's "credibility is rapidly fraying." The truth of the matter is that her credibility has been completely frayed for months, and so has your newspaper's for serving as Nifong's de facto cheerleaders. You should be ashamed of yourselves.
RICARDO CASTELLS
Miami, Fla.
December 28, 2006
From Herald Sun:
Where is the state bar?
Mike Nifong is holding on tightly to the lesser charges only to save face and in the hopes that a gerrymandered jury will give him a conviction to justify his irresponsibility and criminality. Back in the 1990's, United States District Judge Stanley Sporkin, having heard a series of savings and loan fraud cases, lamented, rhetorically and in hope, "Where were the lawyers?" It was his belief that lawyers for the fraudsters should have inserted themselves more aggressively into the process in an effort to mitigate the financial damage that was being wrought.
It is similarly fair now to ask "Where is the North Carolina State Bar Ethics Committee?" If a lawyer who happens to be a public official obstructs justice in violation of North Carolina law and in derogation of his oath of office, does that official have absolute immunity from ethical challenge -- or is the North Carolina State Bar just another political player and race pimp? Such are the government structure of Durham County and the Duke administration, which was politically constrained to sacrifice a few white kids' lives to mollify Rev. Al Sharpton and the other gods and demigods of racial intimidation.
JEFFREY MEYER
Clearwater, Fla.
December 29, 2006
This artilcle was sent to us by Professor Banzhaf on December 29, 2006.
Nifong Bar Charge Creates 3rd Conflict of Interest
(NC State Bar Complaint Could Doom Duke Assault Prosecutions)
The formal legal complaint filed yesterday against Durham DA Michael Nifong by the North Carolina State Bar creates a third conflict of interest situation, and could doom the prosecution of three Duke lacrosse players for sexual assault, says public interest law professor John Banzhaf, who has filed several bar complaints and successfully orchestrated legal actions against a number of major governmental figures, including former Vice President Spiro T. Agnew.
FOR A COPY OF THE COMPLAINT: Click Here.
The State Bar complaint charges Nifong with violating Rule 3.8(f) of the Code of Professional Responsibility which requires prosecutors to “refrain from making extrajudicial comments that have a substantial likelihood of heightening public condemnation of the accused," and Rules 8.4(c) and 8.4.(d) which state that they cannot “engage in conduct involving dishonesty, fraud, deceit or misrepresentation," or “engage in conduct that is prejudicial to the administration of justice.”
FOR A COPY OF THE RULES, SEE: http://www.ncbar.com/rules/rules.asp
The complaint creates a conflict of interest -- a legal concept which also includes an apparent conflict of interest -- because Nifong could be tempted to slant the way he presents the evidence in order to seek to justify his extrajudicial comments, or at least reasonable people might assume, says Banzhaf, noting that the appearance of a conflict of interest is often enough to require disqualification in order to preserve the appearance of a fair and impartial trial.
Another conflict which already exists is based on testimony under oath by Brian W. Meehan, the director of a private laboratory which performed DNA testing for Nifong, that he withheld crucial and potentially exculpatory evidence and that it was ''an intentional limitation'' arrived at between him and Mr. Nifong. This indicates a violation of a state law which requires such evidence to be turned over to prosecutors, and possible perjury and/or contempt of court convictions for Nifong's statements that all relevant evidence had been turned over.
"Because Meehan's testimony could be so damaging to Nifong personally, Nifong faces another clear conflict of interest in deciding how to prepare Meehan to testify in any further proceedings, and how to frame the questions once he takes the stand," notes Banzhaf. "It is quite unlikely that a judge would permit any attorney to examine a witness under oath when the witness' testimony could put the attorney behind bars," says Banzhaf.
An additional or supplemental disciplinary Bar complaint may well be filed against Nifong based upon this testimony, suggests Banzhaf, noting that these additional charges might not have been included in the Bar complaint filed yesterday because Nifong would not have had sufficient time to reply to the Bar's initial inquiry.
Finally, suggests Banzhaf, Nifong may face a third conflict of interest over his decision -- apparently in violation of written guidelines -- directing the police to use an unconventional stacked lineup procedure. Since testimony regarding how much of a role Nifong played in conducting these lineups could be potentially very damaging to him individually -- perhaps even resulting in personal liability under 42 U.S.C. 1983 -- he might be tempted to shade his examinations regarding it.
An interesting and very telling point which the press largely ignored is that the State Bar chose to file the complaint publicly rather than under seal as it often does, and did so now rather than waiting for the upcoming hearing when Nifong suggested he might drop the charges if the accused in uncertain about her identifications. Both points suggest the State Bar is very concerned about Nifong's conduct and its impact on the profession in the state, and took this unusual step of "firing a shot across his bow" in an effort to add pressure on him to drop the case.
If Nifong is forced to recuse himself from prosecution, or if a judge refuses to let him remain on as prosecutor, it's not clear if the prosecution could or would continue. Other members of Nifong's office would appear to share the same conflict of interest, since Nifong would still remain their boss even if he didn't prosecute the case, so they might decline to proceed, or even be prohibited from doing so by the trial judge. It's also likely that any other prosecutor asked to take on the case would decline because it is so weak and scandal tainted, suggests Banzhaf.
In short, Meehan's testimony, my very recent public suggestion that Nifong lacks absolute prosecutorial immunity under these unique circumstances and could be held personally liable for monetary damages, the dropping of the rape charges because of problems with the accuser's memory, and the filing of the State Bar complaint could finally bring an end to all of these criminal proceedings, suggests Banzhaf.
ON IMMUNITY: Click here.
"Law is a two-edged sword, and Nifong may finally be seeing what happens when it is turned against him," says Banzhaf.
PROFESSOR JOHN F. BANZHAF III
Professor of Public Interest Law
George Washington University Law School
From Herald Sun:
Stubborn and misguided
I was glad to see the rape charges dropped against the three Duke lacrosse players, I only wish the rest of the case had been dismissed as well. Mike Nifong has shamefully represented the office of the District Attorney and has ruined three young men's lives in the process. He knew from the beginning that his case had no merit, yet to save his own butt for re-election, he chose to charge the three men with rape to save face for the election.
He is a disgrace to the law profession, and if he had any dignity left at all, he would do the right thing and step down from his office. If I were a citizen in Durham I would be ashamed that Nifong represents me as district attorney. I look forward to the day the rest of the charges are either dropped or the defense makes Nifong look like an idiot in court and the jury finds not guilty on the remaining charges. Maybe then he will realize what a tragic error he has made. But then again, seeing how incredibly stubborn and misguided Nifong is, I wouldn't count on it.
ANDY MACIEJEWSKI
Newport News, Va.
December 30, 2006
This was sent to FODU by Professor John F. Banzhaf on January 29, 2007.
New Nifong Complaint Could Derail Past and Future Prosecutions
By Tainting Any Case Handled by Prosecutor's Office; Worse Than Furman
An expanded State Bar complaint filed against DA Michael Nifong charging him with "systematic abuse of prosecutorial discretion ... prejudicial to the administration of justice," as well as violations of the U.S. Constitution and the laws of North Carolina, could taint or even derail both past and future criminal cases in Durham County, says public interest law professor John Banzhaf, whose public comments about civil liability for Nifong may have played a role in his decision to downgrade the initial rape charges.
"Any declaration by an official body, even in a charging document, that the prosecutor appears to have violated the U.S. Constitution and the laws of North Carolina by illegally withholding vital evidence, and then lying to the judge and defense attorneys about it, opens the door for other criminal defendants to challenge past convictions won by Nifong, and to demand more protection in cases to be tried by his office in the future," says Banzhaf.
Banzhaf suggests that these problems could arise even with cases tried by other attorneys in the prosecutor's office since it may be possible to convince a judge that these subordinates knew or should have realized what Nifong was doing, and were at the very least complicit by standing by and doing nothing. Also, similar concerns could also be raised about the office's only full-time investigator who was a gospel singer with limited criminal investigatory experience, and who was himself apparently investigated for allegedly making false statements on the witness stand.
"Mark Furman's misconduct inexorably tainted the O.J. Simpson case, and may have led to the prosecution team's failure to convict, even though it largely involved his racial attitudes and statements and not violations of the Constitution, and even though as a police office Furman had far less opportunity to infect a criminal proceeding than a county prosecutor," argues Banzhaf.
Defendants who complain about prosecutorial misconduct, the hiding or falsification of evidence, and other alleged abuses usually receive little sympathy or relief from a judge since the claims usually seem baseless. Here defense counsel -- whether challenging old convictions or fighting new ones -- are obviously on much stronger ground since they can cite the official complaint filed by a state organization alleging that Nifong did commit serious violations, at least in the Duke case.
Defense counsel in future cases may demand far more than assurances -- even assurances under oath -- by Nifong, and perhaps even by his subordinates, that all relevant evidence has been disclosed. In addition, they could seek the appointment of a special prosecutor or even a special master to help the judge be sure that no evidence was withheld, and that the defendants were not victims of other "abuse of prosecutorial discretion," suggests Banzhaf.
"The often-asked question of how Nifong could possibly try the Duke lacrosse players has now been answered by his recusal under fire, but the question of how he can continue to try other cases in Durham County remains to be addressed," says Banzhaf.
PROFESSOR JOHN F. BANZHAF III
Professor of Public Interest Law
George Washington University Law School
Boycott anything about Duke University. Shut the school down. Fire all Duke professors.
On DNA evidence, did Nifong break he law?
By Robinson O. Everett
I have recently been reading articles about the ethics charges brought against District Attorney Mike Nifong by the “North Carolina Bar Association.” These articles obviously err in one respect – the complaint was filed by the North Carolina State Bar, which is a state-established regulatory organization to which all attorneys must belong, and not by the “North Carolina Bar Association,” a voluntary professional association in which membership is not required in order for someone to engage in the practice of law.
The articles refer to allegations that, although Nifong released laboratory test results from revealing that no semen from any of the lacrosse players had been found on the accuser’s body, he did not inform the defense council that semen of other persons had been recovered from her. I realize that the Supreme Court has held that constitutional due process requires that a prosecutor not use testimony he knows to be perjured and not withhold from the defense exculpatory evidence that would tend to disprove guilt or reduce sentence. Moreover, North Carolina status required that, when a suspect has been the subject of a lab tests for semen or other “non-testimonial identification procedures,” he or “his attorney must be provided with a copy of any reports of test results.” Therefore, Nifong had an obvious constitutional and statuary duty to reveal to the defense any lab results revealing that the dancer’s body contained no semen from any lacrosse player – a circumstance directly contradicting her claim that she had been raped by the three players.
I am much less certain that Nifong had any duty to provide the defense with evidence about the presence on the accuser’s body of semen from other persons who were not lacrosse players. My concern is with the application of North Carolina Rule of Evidence 412. Like its counterpart, Federal Rule of Evidence 412, this rule creates a “rape shield” in prosecutions for rape and other sexual offenses. The North Carolina Rule states that the alleged victim of a rape shall not be compelled to reveal her sexual history and that evidence shall not be received at trial concerning the sexual activity by the victim other than that on which the criminal charge against the defendant is based.
The premise for this exclusionary rule is that in a trial for rape, it should make no difference whether the alleged victim is a virgin or a prostitute; the only issue for the jury to try should be whether she consented to intercourse with the defendant at the time and place of the alleged rape. Otherwise, an alleged victim with a sordid past history or repeated sexual activity may be “punished” by a jury by its acquitting the defendant. Moreover, if an actual victim of rape knows that at a trial of the rapist her sexual history will be disclosed, the embarrassment for her that might result from the disclosure may deter her from making a complaint or from testifying later at a trial about the rape.
Rule 412 contains four narrow exceptions which might allow receipt of evidence that alleged victim had sexual relations with persons other than the lacrosse players; but, after examining the rule, I doubt that those exceptions would apply in this case. Therefore, Judge Smith, who will try the case, may not allow the jury to hear this evidence – although the evidence clearly should be admissible that the tests revealed no semen from the lacrosse players on the body of the accused.
The newspaper articles indicate that Nifong had the private laboratory delete from the report the “test results” concerning semen of the persons other than the lacrosse players. I wonder whether the district attorney violated any constitutional or statutory requirement if he had the laboratory delete from its “reports of test result” those that would be inadmissible at trial but which he fears the defense might use to attack the accuser’s character. The answer to this question may be relevant in the State Bar’s consideration of the ethics complaint. Time will tell!
The writer is a law professor at the Duke University School of Law.
Professor, I was disappointed you did not disclose you support of Nifong during the elections in your letters to both the Hearald Sun and the N&O. In any event, go to Durham in Wonderland and the other blogs. Besides KC and Bill A., there are many billant people writing who you can communicate with and have aome fum. You might consider calling Prof. Tom Crowley about entering into the hoax without having all your facts straight. Look forward to reading your opinions on the blogs.
From Herald Sun Letters:
Nifong's double standard
In response to your editorial on Feb. 11, "Lacrosse lesson: Be slow to judge," and your article on Feb. 10, "Nifong critic petitions for ousting," it appears that District Attorney Mike Nifong, where his own culpability is concerned, has adopted the lesson presented in your editorial: "Even if you think someone might have done something doesn't mean they did it. We shouldn't rush to judgment."
He is reported to have responded to Beth Brewer's petition for his ouster by saying, "I hope everybody will withhold judgment until they've heard my side." Would that he had given the defendants in the lacrosse case the same consideration he now wants for himself.
George W. Pearsall
Durham
February 15, 2007
(The writer is a professor emeritus of Mechanical Engineering at Duke University)
From Herald Sun - Letters Section:
Pot-bangers were MIA
Saturday was a beautiful day to watch a lacrosse game. It was great to see so many people at Koskinen Stadium to support the Duke lacrosse team. I am happy for the players and coaches on a great performance.
While sitting in the bleachers with my 11-year-old son watching the media scurry about the field, I couldn't help but wonder where were the protestors? Were they banging pots outside President Richard Brodhead's house to protest how poorly he handled the situation? Were they at Joe Alleva's house protesting his lack of courage and concern for his own job by not standing up for one of his most successful and loyal coaches who was under fire from a knee-jerk administration? Were they organizing a petition to censure the group of professors who publicly condemned their own students? Or maybe they were outside of District Attorney Mike Nifong's house protesting abuse of prosecutoral power? Who knows?
What does their absence at the game tell us about who they really are? The pot bangers and other protestors are as much to blame as Brodhead, his faculty, his AD and Mike Nifong for fueling this situation that has shed such a poor light on our great city.
Pete Klein
Durham
February 27, 2007
From Herald Sun - Letters
Duke athletics aren't the problem on campus
As a retired sports editor, author of three books on Duke basketball and current columnist for Blue Devil Weekly, I will restrict my comments on CCI to athletics. What was the point? Additional piling on, begun after the lacrosse case, by campus critics of Division I athletics?
Duke athletes graduate at a rate of better than 90 percent, at or near the top nationally every year, and comparable to the student body rate. Duke has had the most ACC honor roll athletes (3.0 GPA) for 18 consecutive years. It has won far more football graduation awards than any other school. Where is the need to raise admission standards?
At the recent football summit, it was reported that the team GPA was 2.7, that of all other athletes 3.0, and the student body 3.2. Last year, freshman Amanda Blumenherst of the school's most successful team, women's golf, was national player of the year and also the top student among all honored golfers. The team misses more class time than any other, yet most seasons every team member is on the academic honor roll. Restricting travel and practice time is meaningless and counter-productive.
The lacrosse program, which triggered much of this study, has historically a 100 percent grad- uation rate. This fall, the team GPA was well over 3.0.
As far as diversity, Duke's student body is 56 percent white, 14 percent Asian, 11 percent black and seven percent Latino, making it one of the most diverse nationally among all peer schools.
Duke is what other schools desire, successful athletically (eighth in the Governor's Cup in '06), and academically. At the football summit, Duke athletic administrator Chris Kennedy said, "Our cooperation with the administration is the best ever."
Bill Brill
Durham
March 1, 2007
From Herald Sun - Letters:
Many Duke students are unprepared to do math
Bill Brill's letter about the Duke CCI report asks "Where is the need to raise admission standards?" As a current Duke faculty member, I would like to answer. In my department -- statistics -- we give a placement exam to students wanting to enroll in introductory classes. The exam consists of 25 multiple choice math questions. About 20 of these questions are at the level of middle school math or below; the remaining five are at the level of Algebra I.
We find that a significant number of test takers -- eight out of 20 on the most recent exam -- get no more than 15 questions correct. Either a large number of Duke students cannot do middle school math or else they deliberately give wrong answers to get placed into easy courses. In either case, we should expect better. We should expect Duke students to do at least high school math and to enroll in courses that challenge them.
There may be several reasons why so many of our students fail to meet these simple criteria. Some such students are recruited to Duke to play sports. Others come to Duke for our big-time sports atmosphere. Still others may come to Duke for reasons entirely unrelated to sports. But for whatever reason, we do have such students and that is why some of us feel the need to raise admission standards.
MICHAEL LAVINE
Durham
March 5, 2007
Mr. Lavine, you are basically saying Duke's Admissions office is doing a lousy job, admitting unqualified students to Duke. What does that has to do with Mr. Brill's letter? Also, do you have any real statistics or evidence to prove this outrages accusation you are making. It sounds to me like you are just shooting from the hip! You are trying to put down Duke at all cost? You motives in writing this letter are highly suspicious! Perhaps, you should have gone to your department head with this observation.
Incidentally, how many times did you do that?
Duke Lacrosse Charges May Be Dropped Friday
Case Virtually Impossible to Win, Says Law Prof>
A decision by special prosecutors to drop the remaining sexual assault charges against three former Duke lacrosse players reportedly may be announced as early as Friday, and it is long overdue since the case has clearly been virtually unwinnable for some time, says public interest law professor John Banzhaf, whose suggestion of a civil law suit against Durham County DC Michael Nifong may have been a factor in forcing him to step down and bringing the proceeding to its current posture.
Any decision to drop the remaining charges may be based -- in additional to the glaring deficiencies and contradictions in the known evidence -- upon the apparent refusal of the complaining witness and the other dancer to continue to cooperate with prosecutorial authorities. As the Herald Sun recently reported:
"If the woman didn't cooperate, it likely would sound the death knell for a case that has rocked the community and brought enormous national publicity to Durham, lawyers and professors said Friday.” They said that, since no incriminating scientific evidence and no eyewitnesses have turned up, the case could not survive unless the accuser was forthcoming. "Without her, everything would be dead in the water, if it wasn't already," said law professor John F. Banzhaf III of George Washington University. "Her testimony is the only evidence that any kind of criminal activity [allegedly] occurred. The case rises or falls on her. There is nothing else." Still, Banzhaf and others predict the matter ultimately will be dismissed because the woman has been inconsistent and contradictory in previous accounts of the alleged sexual assault State cites lacrosse case cooperation.
"Given what is known about the case and the evidence, there is no way prosecutors in good conscience can continue the proceeding. The special prosecutors' prompt dismissal of all further charges may help to refurbish the image of North Carolina justice so tarnished by Nifong that it was the butt of jokes, cartoons, and skits," says Banzhaf.
PROFESSOR JOHN F. BANZHAF III
Professor of Public Interest Law
George Washington University Law School
FAMRI Dr. William Cahan Distinguished Professor
2000 H Street, NW, Washington, DC 20006, USA
(202) 659-4312 // (703) 527-8418
http://banzhaf.net
From Herald Sun - Letters
Just resign, Mike
I believe there comes in the lives of most people a life-defining moment, a moment so definitive that nothing they have done before or will do after will change their "legacy." District Attorney Mike Nifong's defining moment came when he chose to pursue a phantom rape case to further advance his career.
Nifong's position as district attorney is no longer tenable. He was forced to relinquish responsibility for prosecuting a high-profile case. The state bar is considering whether he should retain his certification. He has precipitated a potential constitutional crisis as the Legislature seeks to give the executive branch power to remove an elected member of the judiciary. He has lost the credibility of both his office and himself.
The only decent thing for Nifong to do is to fall on his sword. He needs to spare himself, his family and his community the distractions of his ignominy. You need to resign, Mike. It's the right thing to do.
David Highlands
St. Petersburg, Fla.
March 30, 2007
It will take a wrecking ball to get Nifong out of that office.
The article below was sent to FODU by Professor Banzhaf on April 11, 2007.
Duke Lacrosse Charges Will Be Dropped -- ABC
Case Virtually Impossible to Win, Says Law Prof
ABC News reports the special prosecutors will drop the remaining sexual assault charges against three former Duke lacrosse players, and it is long overdue since the case has clearly been virtually unwinnable for some time, says public interest law professor John Banzhaf, whose suggestion of a civil law suit against Durham County DA Michael Nifong may have been a factor in forcing him to step down and bringing the proceeding to its current posture.
http://abcnews.go.com/US/story?id=3028515&page=1
Any decision to drop the remaining charges may be based -- in additional to the glaring deficiencies and contradictions in the known evidence -- upon the apparent refusal of the complaining witness and the other dancer to continue to cooperate with prosecutorial authorities. As the Herald Sun recently reported:
"If the woman didn't cooperate, it likely would sound the death knell for a case that has rocked the community and brought enormous national publicity to Durham, lawyers and professors said Friday.
They said that, since no incriminating scientific evidence and no eyewitnesses have turned up, the case could not survive unless the accuser was forthcoming.
"Without her, everything would be dead in the water, if it wasn't already," said law professor John F. Banzhaf III of George Washington University. "Her testimony is the only evidence that any kind of criminal activity [allegedly] occurred. The case rises or falls on her. There is nothing else."
Still, Banzhaf and others predict the matter ultimately will be dismissed because the woman has been inconsistent and contradictory in previous accounts of the alleged sexual assault "
http://www.heraldsun.com/durham/4-830227.cfm
"Given what is known about the case and the evidence, there is no way prosecutors in good conscience can continue the proceeding. The special prosecutors' prompt dismissal of all further charges may help to refurbish the image of North Carolina justice so tarnished by Nifong that it was the butt of jokes, cartoons, and skits," says Banzhaf.
PROFESSOR JOHN F. BANZHAF III
Professor of Public Interest Law
George Washington University Law School
Thsi article was sent to FODU by Professor John F. Bazhaf III on April 11, 2007.
NC AG Cooper Sets Stage For Suing DA Nifong
Holds Extraordinary and Surprising Press Conference
The press conference of North Carolina Attorney General Roy Cooper was extraordinarily and surprisingly outspoken in proclaiming that the former Duke lacrosse players were not only "not guilty" but innocent, but also in going out of his way to criticize DA Michael Nifong with comments which could strengthen any civil suit against Nifong which might be brought, says public interest law professor John Banzhaf.
It was Banzhaf's suggestion that Nifong could be subject to a civil law suit for violating the constitutional rights of the three accursed students -- despite so-called "prosecutorial immunity" -- which may have been a factor in forcing Nifong to step down from the case and bringing the proceeding to its current posture.
"Prosecutors rarely criticize each other in public, and almost never proclaim persons 'innocent' of crimes. Perhaps one reason Cooper spoke as forcefully as he did, and not simply announce that the charges were being dropped because of the insufficiency of the evidence, was his realization that the reputation of the North Carolina criminal justice had been so severely tarnished, and that going beyond what was required was necessary to restore its reputation," suggests Banzhaf, who notes that the case has been ridiculed on numerous TV programs, and has been the subject of hundreds of very critical editorials and other comments.
Banzhaf had been one of the first to publicly point out that, although prosecutors ordinarily enjoy absolute immunity from law suits for violating the constitutional rights of others, the U.S. Supreme Court has made an exception when prosecutors go beyond the narrow prosecutorial function and advise police, take part in investigations, etc. Thus Nifong would not have absolute immunity for law suits over his role in ordering a stacked line up, in suppressing DNA evidence, and in many other ways.
"With both the North Carolina State Bar and that state's chief law enforcement officer having publicly concluded the Nifong acted wrongfully, it should be much easier for the students to convince a jury to hold him liable for the harm he unnecessarily caused them.
"The Duke cases remind us that the criminal justice system can sometimes result in very serious miscarriages of justice, many of which -- unlike this situation -- are not corrected even partially prior to trial. One reason is that the victims are usually poor minorities who lack money for effective representation. Here the wealth and status of the accused seems to have played a major role in limiting this miscarriage, but the event is unlikely to have much impact on future cases where the defendants are poor," says Banzhaf.
PROFESSOR JOHN F. BANZHAF III
Professor of Public Interest Law
George Washington University Law School
This article was sent to FODU by Professor Banzhaf on April 13, 2007.
Duke Might Sue -- or Remove -- DA Nifong
To Protect Students, Prevent Reoccurrence
While many commentators are now openly suggesting that the former Duke lacrosse players should sue DA Michael Nifong -- a concept initially advanced and explained by public interest law professor John Banzhaf -- no one has yet suggested a possible law suit by Duke against Nifong for the serious harm he has caused the University. Cleared Duke Players Could Sue.
"Duke should consider bringing a legal action against Nifong for the injury his illegal acts caused the University, and should also consider calling for his resignation or ouster to protect its students," says Banzhaf, noting that Nifong might be liable under a variety of legal theories including defamation, false light, prima facie tort, and other actions.
Nifong's numerous illegal and even unconstitutional actions damaged Duke University and its students, notes Banzhaf, and the law may provide a remedy where an action directed against a few individuals foreseeably resulted in harm to many. By clear implication Nifong charged that many of the students were "hooligans" and worse, that the University tolerated if not encouraged illegal and outrageous behavior, etc. Duke's reputation has been stained, and the reputation of its students sullied, suggests Banzhaf.
Duke should also consider publicly calling for the resignation of Nifong to protect its students, argues Banzhaf. Here we have a rogue prosecutor who, if he didn't have a clear animus against Duke students before, certainly has reason to have an even stronger one now. Since he argues to this day in his disciplinary proceeding that many of his acts did not constitute either a violation of ethics or of law, he is even more likely to repeat this sorry performance if another complaint
against one or more Duke students is made.
"A DA with a clear grudge against Duke, who probably would like nothing better than to try to vindicate himself in the eyes of many of the voters by bringing a successful criminal proceeding against one or more Duke students, and who has shown a willingness to violate their legal and constitutional rights if necessary to do so, is a clear and present danger to every student on the Duke campus, and a risk that Duke can ignore only at its peril," says Banzhaf.
"Many feel that Duke let its students down terribly in this situation, but its excuse is that they did not have the facts at the time to know how wrongful the charges and Nigong's conduct was. Now that they have the facts, it remains to be seen if they will refuse to stand behind their students again by not even attempting to both sue Nifong and remove him from office. Nifong hurt Duke and all its students, and Duke is in a unique position to take effective action if it has the courage to do so."
PROFESSOR JOHN F. BANZHAF III
Professor of Public Interest Law
George Washington University Law School
Rushing to judgment were Duke and president Richard Brodhead, who urged the boys to cooperate(as if they were not) when he knew they had voluntarily done everything the police had asked(except not admitting a crime when it was a hoax); in telling a crowd "What they did was bad enough"; in firing a fine man and fall-guy Coach Pressler; in canceling the lacrosse season before the committee report that praised the lacrosse team for their citizenship,grades, and respect for others was issued--thereby making it appear the team was guilty of the felonies charged; in not repeatedly reinforcing the concept of due process(Oh,yes, he mentioned it once while speaking a thesis on "rape"---he assumed the 3 were guilty--as the media did) ;in not condemning the posters of the lacrosse team posted on and off campus when each player (Duke student!) could have been the physical target of some nut-case enflamed by the hate-mongers like Sharpton ,Jackson,and the potbangers, one of whom yelled to castrate the 3 accused); in expelling a Duke player for a private e-mail that quoted lines from an asignment in class by a group of 88 radical; in appointing the members of the radical left faculty (the group of 88) who had condemned the lax team and the 3 accused and were so silent when a white Duke girl reported her rapeto police at a black fraternity party which had a gun and hard-drugs). Shame,Mr. Brodhead. Resign.The truth of Duke's involvement(like the Crimestoppers' libelous poster) will come out--the tip of the iceberg is emerging...the rest will be apparent.
I have a feeling that, in any suit against Nifong, Duke University would likely to be found to be as responsible as Nifong was for any damage to its reputation as a result of Nifong's miscarriage of justice. The Gang of 88 were Duke employees, and it appears more and more that the Duke administration's early and clumsy efforts at damage control aggravated the situatino.
From Herald Sun Letters:
Abusive leaders
The Durham Police Department has been subjected to yet another round of criticism from the city's leaders. This is like the first round of a fight with Mike Tyson. The decision has already been made.
We continue to stand in silence because our teaching shows us that retaliation does not profit anyone. As we stand bloodied from the slander and vicious attacks, we are just blocking punches. The air of voice is beaten out and the eyes of clarity have been closed. The only things we have left are the legs which are supported by over 500 sworn officers and nearly 200 civilians. We are still able to think but even the referee penalizes us for blows we have not thrown. How much more can we take? A lot, I suspect. However, we cannot and will not subscribe to the philosophy of abuse or continue to be victimized.
It is amazing, or is it just an election year? You decide.
David Addison
Duham
June 10, 2007
The writer is president of the Triangle Chapter Police Benevolence Association.
This article was sent to FODU by Professor Banzhaf on June 11, 2007.
DA Nifong’s Explosive Ethics Trial Begins Tomorrow
He Faces Risk on at Least Three Legal Fronts, Says Law Prof
The trial of Durham County [NC] DA Michael Nifong for numerous alleged ethics violations in connection with the so-called “Duke rape case” begins tomorrow, and Nifong is likely to be disbarred, says public interest law professor John Banzhaf. "Nothing less would help restore the tattered reputation of the North Carolina criminal justice system which has been the butt of jokes and criticism not only throughout this country, but also worldwide, as a result of Nfong's antics," says Banzhaf
Moreover, notes Banzhaf, Nifong also faces sanctions from the judge in the notorious case, Superior Court Judge W. Osmund Smith, who recently signaled that he retains control over the case even though the indictments were dismissed, and that he has the power to discipline lawyers who appeared before him. This could include disbarment or jail for contempt of court. His failure to take any action now that so much more is known would be a black eye for him also, argues Banzhaf.
Finally, suggests Banzhaf, Nifong may well wind up as a defendant in a civil law suit brought by one or more of the three Duke lacrosse players originally charged with rape for allegedly violating their constitutional rights – a contention strongly buttressed by the report issued by the North Caroline Attorney General and the North Carolina Justice Department, as well as the earlier complaint brought by the North Carolina State Bar.
Indeed Banzhaf notes that there have been several hints that such suit would be brought, in part to recover the huge legal costs the families were forced to pay for their defense. He speculates that attorneys may simple by waiting until the ethics trial is over to see what if any additional evidence supporting their case comes out, including testimony from Nifong himself.
Banzhaf was one of the first to publicly point out that, contrary to the claims of many pundits, Nifong could be sued despite what is generally known as prosecutorial immunity – a step which appears to be have been a factor in forcing Nifong the dismiss some of the charges and to step down from the case.
"This new report greatly strengthens the civil case against Nifong, and the case for his disbarment," says Banzhaf, "because it further documents and analyzes additional ethical lapses and prosecutorial wrongdoing. This report, combined with the detailed charges brought by the North Carolina State Bar, as well as Nifong's continued insistence that many of the actions he now admits to weren't unethical, makes the clearest possible argument that he should be removed from power before he can harm others, especially other students at Duke against whom he may now have a strong grudge."
PROFESSOR JOHN F. BANZHAF III
Professor of Public Interest Law
George Washington University Law School
FAMRI Dr. William Cahan Distinguished Professor
2000 H Street, NW, Washington, DC 20006, USA
(202) 659-4312 // (703) 527-8418
http://banzhaf.net
What I find interesting in reading the "Friends of Duke" board is the lack of self evaluation by Duke University, it's professorial staff, and the Duke community itself, in the role they played in unjustly judging and publicly castigating the three players and the Duke lacrosse team in general. I hope that the families of these young men hold Duke University liable in civil suits for their role in this gross travesty of truth and justice. Duke owes these young men more than an apology.
Nifong Seeks Disbarrment, Gets It, But More to Come
Seeking Protection in Civil Suit and Criminal Contempt Proceeding?
In his second surprise move in his disciplinary proceeding, DA Mike Nifong, having been found guilty of all the major ethics charges, has recommended disbarrment as the appropriate penalty, a recommendation quickly adopted by the disciplinary committee.
"This action, rather than simply surrendering his bar license, shows how desperate Nifong is, apparently to shield himself at least in part from expected civil law suits by the students and their families, and a possible fine or even a prison term for criminal contempt," says public interest law professor John Banzhaf, who was one of the first to point out how Nifong could be sued despite so-called "prosecutorial immunity" -- and may have helped pressure Nifong into recusing himself.
Attorneys for the students have pledged to seek criminal contempt charges next week before the judge to which the criminal proceeding was assigned, a step which could result in a large fine or even prison time. They have also indicated -- as many commentators have suggested -- that the students and their families will bring civil actions against Nifong for his illegal and unconstitutional conduct to recover the hundreds of thousands of dollars they spent in mounting a defense, and
for their mental distress.
"The evidence from the ethics proceeding, as well as the findings of the committee, can help the students present an even stronger civil case against Nifong. Especially compelling is the finding that Nifong acted with a wrongful motive to further his own political ambitions," suggests
Banzhaf.
In addition to the criminal contempt proceeding and likely civil law suits, at least two other outcomes may also result, says Banzhaf. One would be a civil law suit and/or criminal proceeding against the woman who made and stuck with the false charges. The other would be a civil rights investigation by the Justice Department -- a step which several members of Congress have already called for.
"True justice will not be done until Nifong is forced to compensate his victims and go to jail for his crimes," says Banzhaf, noting that the test of the North Carolina justice system is not yet over.
PROFESSOR JOHN F. BANZHAF III
Professor of Public Interest Law
George Washington University Law School
As usual, great column. Thank you Professor Banzhaf for sticking with this issue and the case.
From Herald Sun Letters:
Focus on Nifong misses other important issues
The unfortunate focus on Mike Nifong in the lacrosse imbroglio has only hidden the important issues that remain part of the Duke legacy. We still have not resolved the racial conflicts that emerged over this scandal, nor the issue of sexual exploitation of women, nor how the criminal justice system is held captive by wealth and power, nor how academic priorities are subverted by a dominant athletic culture.
It may be true that these players were declared innocent, but their actions that fateful night were not those of Boy Scouts. While they are not paragons of virtue, they are a likable lot, intelligent, talented and on the whole well meaning. But like the rest of us, they are capable of making mistakes, uttering misogynist and racial slurs and making fools of themselves. They are far from heroic.
But let us not forget that a university is a learning environment. Our chief responsibility is to guide youth towards responsible and moral citizenship. The glee expressed in the demise of Nifong has not advanced this goal. There is work to be done at Duke University. The lacrosse case presents an opportunity to promote better and more ethical leadership.
Let us hear the players, parents, athletic department, university leadership and defense lawyers embrace compassion, forgiveness, and leadership toward making this a better world. We all have a role, and using Nifong as a whipping boy only avoids or delays a realization of our true responsibilities.
JOE DIBONA
Durham
June 30, 2007
From a New Jersey lawyer: I agree with Mr. DiBona that the focus on Nifong has hidden some important issues. In fact, the new "meta-narrative" that seems to be emerging is that, all by himself, with no enablers, Nifong orchestrated the whole Duke Lacrosse "imbroglio," lying to people like the media and Arts & Science faculty at Duke who, of course, have the greatest of respect for the veracity of prosecutors. It is quite clear that Nifong had a lot of help (some witting, some unwitting) from a lot of people.
Mr. DiBona, however, misses a number of important issues that are hidden by the newly emerging metanarrative.
The first, issue is why has the MO of Duke's administration since the beginning of the imbroglio been to sacrifice the legitimate rights and interests of the players and their coach to an effort to preserve Duke's "image," sometimes engaging in the most incredible conflicts of interest (e.g., advising students of a non-existent school administrator/ student privilege and arranging for a single attorney to facilitate the contacts of all 46 white players with the police, notwithstanding the potential conflicts of interest) in doing so. Even the invitation to Reade Seligmann and Collin Finnerty to return to Duke after the rape charges were dropped (the correct decision) seemed to be geared more towards repairing Duke's image than to actually welcoming the two players back. Of course, when keeping the imbroglio under wraps didn't work, the players and their coach were thrown to the wolves (e.g., Pres. Broadhead's state-ment that "what they did was bad enough) in an attempt to placate the various constituencies tow which Duke's administration felt itself beholden.
The second issue is whether and why the race of the accuser had any relevance to Duke's response. It is clear from Duke's report on its initial response to the imbroglio that the administration believes that the accuser's race was relevant. Similarly one of the signatories to the "Listening Statement" seems to think that it would have been preferable for the Lacrosse players to have hired or coaxed two white, attractive, well-to-do Duke co-eds to strip for them. This doesn't say much about Duke's respect for its white female students.
The third issue is the failure of the faculty (with few notable exceptions) at Duke's Law School to come to the defense of that basic piller of American Lew that the defendant in a criminal case is innocent until proven guilty. In light of the substance and timing of the "Listening Statement" it behove the law faculty to make a public counter statement to the effect that, no matter what conclusions one may have drawn from the evidence available, the players (even after indictment) were innocent until proven guilty. Discrete discussions in classes were not enough under the circumstances. A public statement was necessary. The failure of the faculty to support the presumption of evidence makes me wonder whether they believe the presumption or lack the courage to defend it. If they don't believe it or lack the strengh to protect it, one can only wonder about the future of civil rights in the United States as their students take positions as lawyers, law professors, elected officials or judges.
Another issue to be addressed is the apparent jealousy and/or resentment felt by many on the Duke faculty for students that take advantage of the blessings they have been given and develop themselves as students and athletes. I wonder if some of the signers of the "Listening Statment" resent the fact that they have students that can excel both in athletics and in academics.
Another issue is the apparent inability on the part of many on the Duke faculty to accept the merit in analyses other than the deconstructionist/hermeneutic of suspicion/neo-marxist approaches to analysis they have embraced. I am not a conservative and do believe that considerations of race, gender and class are relavant to social, political and economic analysis. I have, however, met many intelligent conservatives and have learned much from them.
It is only when issues such as the foregoing are addressed, that issues such the "racial conflicts," the "sexual exploitation of women," the enthrallment of the legal system to wealth and power and the subversion of academics to athletics can be addressed. Without addressing the issues identified above, addressing racial conflicts and sexual exploitation will sound like another chorus of "I hate [white] men. Moreover, the families of the indicted, who were stuck with millions of dollars of legal bills just to prove what Nifong (and, probably, Duke) knew from the very beginning, that their sons were innocent, probably don't see the legal system as one enthralled to wealth and power. In a system enthralled to wealth and power, it would not have taken millions of dollars to get at the truth. Finally, absent a consideration fo the issues outlined above, any attempt to deal with the alleged subversion of academics to athletics is going to look like the university is playing into the hands of people who resent those with athletic talent.
Finally, in response to Mr. DiBona's reiteration of the "the players were not angels" genre, the facts more and more indicate that any mysogynistic or racial slurs uttered by any of the players were in response to racist and anti-male slurs uttered by one of the dancers. In any event, the three indicted players, despite any mistakes they made by hosting and/or attending the party have acted quite heroically since then, much more heroically, I might add, than many who are now running for cover behind the emerging anti-Nifong metanarrative.
From Herald Sun Letters:
Steel shouldn't serve as Duke board's chair
While Duke has finally announced seven new members of its Board of Trustees, the university has yet to reveal results of May's election of leaders of the board. With two new vice chairs, including the first African-American, this certainly is newsworthy.
This secrecy has the result of shielding Chairman Robert Steel from scrutiny for standing for re-election. Yes he is a titan from Wall Street, and yes he's a loyal son and benefactor. But he has now accepted a key position in the federal Treasury Department. The potential for conflict of interest properly caused Steel to recuse himself from overseeing Duke Management Company, the arm of the university that invests more than $7 billion. This is a responsibility assigned to him by university by-laws and a key element of his job; unable to fulfill this requirement, he should have retired.
Duke has invested an unusually high percentage of its money in private equity and hedge funds -- two bets that have paid off big for several years. But day after day, we see how similar investments are wobbling. Even the major hedge fund run by Goldman Sachs, Steel's former Wall Street firm, lost six percent last year. Two tangled hedge funds run by the firm of another Trustee are in the financial news daily with loses likely to exceed $1.2 billion.
Duke faces critical decisions on investment strategy and as contemplated by the by-laws, the chair should give his imprimatur. In this context, Steel's re-election is inappropriate.
The writer is a Duke alumnus, '63, Duke Law '66.
ED RICKARDS
New York
July 10, 2007
I agree with Mr. Eckards conclusion. Mr. Steele cannot fully function on Duke's Board of Trustees as long as he holds his position with the Treasury Department. The rest of the Board should recognize the conflict, as well. That he has not resigned from the Board, or been required to do so suggests that the Duke Board of Trustees operates under a very flexible set of ethics.
Steele should go. If he has any decency left in him, he should resign, the sonner the better. He is not welcome at Duke any longer, not after the lacrosse fiasco!
This was sent to FODU by Professor Banzhaf on December 19, 2007.
Lacrosse Players Sue Nifong - Is Duke Next Plaintiff?
Law Prof Predicted More Law Suits - Open Season?
As predicted by public interest law professor John Banzhaf, three former Duke Lacrosse Players have filed a major law suit against former District Attorney Michael Nifong and many others -- including Duke University -- over the harm they suffered from the baseless allegations of rape against members of the Duke Lacrosse Team.
As Banzhaf had noted, the harm caused by this gross abuse of the criminal justice system was not confined to the former students who were actually charged, but also extended to many others who would likewise have legal claims.
Banzhaf had urged Duke, the University whose reputation was harmed by Nifong's actions, and which was put to a great deal of expense because of them, to bring its own law suit. Ironically, it is now named as a defendant.
"Duke may wish to consider bringing its own law suit against Nifong and others named in the current law suit and/or simply seek to shift the entire liability in this new legal action to the other defendants," says Banzhaf.
"Otherwise, Duke -- as the defendant with the deepest pockets -- may wind up with even more legal liability as well as more egg on its face."
Public Interest Law Professor John Banzhaf
George Washington University Law School
Sent to FODU by Professor Banzhaf on February 21, 2008.
Duke, Sued by Lacrossers Should Fight Back, says Law Prof
Duke, Now Defendant, Should Sue/Join Durham as Defendant
Dozens of former Duke lacrosse players have sued Duke and the City of Durham for the harm they suffered as a result of unfounded rape allegations being pursued against members of the team -- a result predicted months ago by public interest law professor John Banzhaf who first suggested the legal action against former DA Michael Nifong which helped lead to his downfall.
But, says Banzhaf, Duke should consider either cross-complaining against Durham, or naming the city as a defendant in a separate law suit, since the University was also a major victim of Nifong's vendetta against the Duke lacrosse players.
"Duke, while hardly blameless, was also a major victim of a runaway prosecutor, and has probably suffered millions of dollars of harm to its reputation, and in expenditures it has been forced to make as a result of this legal fiasco, argues Banzhaf.
"There is every temptation for Duke to try for a quick settlement to avoid further expense and harm to its reputation, so such a result would not be unexpected."
"However, if Duke decides to stand up and fight, it should fight as an aggressor and plaintiff against those chiefly responsible for the harm to the University and its students, rather than simply adopting a defensive posture and trying to justify what it did under circumstances which would try any university," suggests Banzhaf.
PROFESSOR JOHN F. BANZHAF III
Professor of Public Interest Law
George Washington University Law School
I respectfully disagree. Duke was as bad in this whole lacrosse deal as Durham and they belong on the same side of the aisle during the lawsuits. I hope the lacrosse players and their families win these lawsuits and in the process take both Duke and Durham to the cleaners. That will be the only fair end to this ugly saga.
From the Letters section of Herald Sun (september 29).
Duke stonewalls
Thank you for The Herald-Sun's update on the cost of lawyers defending city government and police in the lacrosse hoax lawsuits. The public is entitled to such information, crucial to the concepts of transparency and accountability.
I have been trying to get Duke University to provide similar information, only to collide with "policy" that denies access. I have been stonewalled when asking for any reason that justifies this policy, which seems born of a clandestine mind-set that conveniently masks the dismal role of Trustee Chair Robert Steel and President Richard Brodhead in the debacle.
Federal law does make one arcane report public, and it's quite interesting. In the 2004-2005 school year, Duke spent $4,316,301 on legal fees for all activities. In the following year, which included three and a half months of the hoax, it was $5,879,729. In 2006-2007, the latest with data available, this total leaped to $10,207,165.
Heavy litigation did not set in until after this. Duke added lawyers like Jamie Gorelik of Washington, whose firm typically bills $800 an hour for partners' time.
There is no certainty that the hoax led to these increased legal costs, because Duke will not help interpret the numbers. But I can identify no other reason.
Across the full spectrum of the university, the denial of information is a hallmark of the Brodhead years, and it is disintegrating the ability of students, alumni and faculty to effectively monitor and participate in university governance.
ED RICKARDS
New York
September 29, 2008
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