Michael Gaynor
June 20, 2006
Mike Nifong makes Newsweek look great
By Michael Gaynor

The latest issue of Newsweek made Durham District Attorney Mike Nifong freak. "DUKE: SHOULD THE CASE BE DROPPED?" appears at the top of the cover. The article inside makes it virtually certain that the answer is yes. Example: "THE PROSECUTOR INSISTS HIS RAPE CASE IS STRONG. ONE BIG PROBLEM: THE FACTS THUS FAR." Mr. Nifong is partial and utterly wrong, and he should never have been admitted to the bar.

Give Newsweek due credit: this time it's right. The Duke case is Tawana Brawley Two; dismissing the indictment immediately is the right thing to do; Mr. Nifong's political and legal careers soon should be through; and, for Newsweek, the article is a coup.

The article begins by reporting a choice that did the entire Duke lacrosse team proud (unlike the choice of "entertainment" for that infamous party last March): "The order had come, signed by a judge, requiring that the Duke lacrosse team give DNA samples. The prosecutor was trying to identify the three players who had allegedly raped an exotic dancer at the house rented by three of the team's co-captains on the night of March 13-14. All 47 players had gathered in a classroom near the lacrosse field to hear their lawyer, Bob Ekstrand, tell them what they needed to do. Ekstrand was about to tell the players that they could appeal the order as 'overbroad,' too sweeping in its scope, when the players got up and started heading for their cars to drive downtown to the police station. (The team's one black player was not required to go; the accuser, who is black, claimed her attackers were white.)"

Susannah Meadows, who co-authored the Newsweek article with Evan Thomas, had emailed Mr. Nifong while the article was being prepared and asked to talk with him about "questions about what was known while [he] was making certain assertions."

Mr. Nifong emailed back: "I am afraid that I must decline your request for interview."

It makes sense to me that he was "afraid." If I were Mr. Nifong, I'd be afraid too. And I would have declined to talk with Ms. Meadows too, since talking with her probably would make things worse for me.

Mr. Nifong strikes me as both a bully and a "discretion is the better part of valor" guy. It required valor to refrain from seeking indictment prematurely. Mr. Nifong secured premature indictments, and managed to win that Democrat primary, so that he could keep his job.

Interestingly, Mr. Nifong in his email reply tried to make a case that he was discrete, writing: "All of my public comments in this case were made prior to any specific defendant being identified, and were essentially restricted to 1) my belief that the victim had in fact been sexually assaulted at the 610 N. Buchanan Blvd. address, and 2) my hope that one or more of the persons who were present but not involved with the assault would cooperate with the investigation. Once specific defendants were identified, I considered myself to be ethically bound to avoid any further comments on the case or the evidence. This has left the field pretty much open to the defense attorneys. That part, I understand and have no choice but to live with."

The most egregious flaw with Mr. Nifong's position is his belief (really, hope) that the accuser was a victim. He raced to indict without waiting for DNA results. He gave the accuser photos of all the white members of the Duke lacrosse team and let her pick. No photos of others, as there should have been, to test her identification. An operating assumption that the accuser, despite her employment, medical and criminal histories, was credible, and at least some of those white lacrosse players had to be guilty, whether or not corroborating evidence was available.

There was a time when blacks were lynched based on baseless accusations. This time three white men were indicted and jailed (until they each posted $400,000 as bail) on baseless charges. Oh well. At least they were not lynched.

Mr. Nifong then expressed his self-pity: "What has surprised me is the utter lack of any degree of skepticism on the part of the national media with respect to the claims of the defense attorneys, many of which are misleading and some of which are absolutely false. As an example, when those attorneys held press conferences to announce that the first round of DNA testing 'completely exonerated' the players (a claim that, of its face, is rather preposterous), I saw not one single report that any reporter had actually seen the test results (none of them had), or had asked to see them and had that request denied (which is what happened to those who bothered to ask). Now you are going over 'documents' in that case. Where did you get them? What other documents did they not show you? But, of course, you cannot possibly know that. Is anyone surprised that the defense attorneys are spinning this case in such a way that things do not look good for the prosecution? Their job, after all, is to create reasonable doubt, a task made all the easier by an uncritical national press corps desperate for any reportable detail regardless of its veracity. Did not exactly the same thing happen with the Michael Peterson case in 2003? Do you recall how that one came out at trial?"

Michael Peterson was convicted of killing his wife, Mr. Nifong. There was no doubt that she was killed. In the Duke case, it's now clear that no one was raped. You used the national media when it suited your purposes and then castigated them when the baselessness of your case became apparent. You did so in conclusory terms and cited but one example: overstatement as to the significance of the first round of DNA test results. And you complained that the press did not have copies of the report on the test.

Let's be real, Mr. Nifong. You seemed to believe that DNA tests would make your case, but DNA tests showed that the accuser had sex with several men but no DNA of even one Duke lacrosse player was found. The players were not "completely exonerated" solely by the test results, but the totality of the circumstances completely exonerates them and constitutes reason for you to move to dismiss the indictments and to investigate the accuser. If you are desperate to indict for rape, based on some type of physical evidence, indict that vibrator? It does not have feelings, family and friends. It does not have a life to live, a college education to complete, a personal reputation to maintain.

Mr. Nifong continued: "Now, to get specific, what are you accusing me of saying in public 'when the facts were known to be different?' None of the 'facts' I know at this time, indeed, none of the evidence I have seen from any source, has changed the opinion I expressed initially. I have seen quite a bit of media speculation (and it is even worse on the blogs) that either starts from a faulty premise or builds to a demonstrably false conclusion. That is not my fault (although some of your colleagues have acted as if it were). The only people I have to persuade will be the twelve sitting on the jury, and if you want to know how I am going to do that, you will need to attend the trial. If, in the meantime, you and other 'journalists' want to continue your speculations in the competition to come up with the most sellable story — and that seems to be everyone's bottom line — then please spare me the recriminations when you get things wrong, as you inevitably will."

First, it is you who got in wrong, Mr. Nifong. Horribly wrong.

Second, you did not get "specific," you got conclusory.

Third, your job is NOT to persuade twelve jurors to convict whomever you have caused to be indicted. Your job is to be fair and impartial, not partial or partisan, and, in the words of the United States Supreme Court, to "be quick to confess error when...a miscarriage of justice may result from their remaining silent."

Obviously the DNA results did not make your case and your witness (the accuser) has been shown to be untrustworthy. The young men indicted are entitled to have their indictments dismissed. If they were black and the accuser was a white female with her history, would you have suggested Ms. Meadows attend the trial? Or would you have raced to dismiss even faster than you raced to indict?

Mr. Nifong concluded: "Not that this will make the slightest but of difference to you, but the real irony of this whole situation from my point is 1) that my initial cooperation with the press was based not on any perceived political advantage to be had, but on my (in retrospect, admittedly naive) belief that such cooperation effectuate a more accurate public discourse on an issue with great societal resonance; 2) that my initial comments on the situation before there was a case against any identified defendant which would trigger the ethical rules resulting in my being accused of unethical behavior, and now my silence, which is mandated by those ethical rules, is apparently raising further speculation about the ethicality of my behavior; and 3) the lesson I have learned from all of this is that I probably would be best served in the future by avoiding speaking to the press at all."

Mr. Nifong, JUSTICE would be best served by (1) dismissal of the indictments, (2) investigation of the accuser and you, and (3) you leaving the practice of law, voluntarily or involuntarily. Anyone who gives credence to what you described as your "point of view" has been "had," to use your word.

Also, Mr. Nifong, does you blanket criticism of the national press corps apply to the North Carolina press too?

I note the following from the final edition of the May 16, 2006 issue of Raleigh, North Carolina's The News & Observer:

"For more than six weeks, Cheshire [a defense attorney] and Nifong have criticized each other through newspapers and television cameras. They apparently have not spoken with each other about the case. On Monday, their acrimony seemed to have escalated into all-out war.

"In a profanity-laced tirade Monday morning, Nifong told one of Evans' attorneys that he was unhappy with the Friday news conference. In addition to discussing the test results, Cheshire accused someone in the District Attorney's Office of leaking the test results to the media.

"Nifong told lawyer Kerry Sutton that he would do no more favors for Cheshire. The comment and the swearing could be heard clearly across the sixth floor of the courthouse. A short time later, Cheshire tried to get a few minutes with Nifong but was told the prosecutor was not available.

"Cheshire acknowledged the bitterness at the news conference.

"'After Mr. Nifong made all his statements and we heard there were going to be indictments, we called over and tried to talk to him, and he refused to talk to us. He's refused to look at the exculpatory evidence, and when there is someone who will simply not act professionally and discuss things with you in a professional way, how else do you do things?' Cheshire said.

"'When you have someone's life in your hands, anybody who would say it's not war is not somebody I'd want representing me.'"

Is that report accurate, Mr. Nifong?

Was there MORE that could have been reported, Mr. Nifong?

On the Monday morning (May 15) after the Friday news conference, did you have a meltdown and scream obscenities like a raving lunatic at Kerry Sutton?

The Kerry Sutton who is a defense lawyer and had been a friend and campaign supporter of yours?

Were you so in the lady's face that your spit landed on her?

Do you customarily spit on other attorneys?

Did you use the MF word?

Did you suggest that you would perform a sex act involving her?

Were there witnesses?

Do you really think you have been fair and objective with respect to the Duke case?

© Michael Gaynor

 

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Michael Gaynor

Michael J. Gaynor has been practicing law in New York since 1973. A former partner at Fulton, Duncombe & Rowe and Gaynor & Bass, he is a solo practitioner admitted to practice in New York state and federal courts and an Association of the Bar of the City of New York member... (more)

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