updated: May 3, 2006
Duke defense demands D.A. be off rape case - Lacrosse player's attorney says Nifong using investigation to get re-elected:
defense attorney Kirk Osborn, who represents indicted lacrosse player Reade Seligmann, wrote of Nifong: “He created an actual conflict between his professional duty to search for the truth and his personal, vested interest in getting elected.”
Osborn also asked the court to throw out the photo identifications made by the accuser, a 27-year-old student at a nearby university who had been hired to strip at a March 13 lacrosse team party, where she says she was beaten and raped.
He called the police photo lineup “unnecessarily suggestive and conducive to irreparable mistake and misidentification” because the accuser was only shown photos of lacrosse players. Osborn said Nifong was improperly involved in the lineup and led police to violate their own policies.
Motion for Recusal of District Attorney, April 31, 2006, Durham County
...he made a series of statements to the national media designed to bolster his election chances while prejudcing the case against the Defendent...
II. Mr. Nifong's Extrajudicial Statements
16. Extrajudicial evidence demonstrates that DA Nifong's duty as a prosectuor is in conflic with his personal interests and that his personal interests won out. These statement reveal that Mr. Nifong is willing to prostitute the truth and fair prosecution for his personal gain in his hotly contested election. It is impossible to list all of Mr. Nifong's prejudicial, extrajudicial statements in this Motion, but a brief highlight of some of these "pre-indictment" public statements is sufficient to illustrate that Mr. Nifong has created a conflict between his duty to the people of Durham County and his own interest in being elected. He has, most certainly, violated the Rules of Professional Conduct. His statements include:
"I felt this was a case that we needed to make a statement, as a community, that we would not tolerate this kind of behavior here in Durham. And I felt that the best way to make that statement was to take this case myself." Rita Crosby, Live and Direct 3/28/06
"It is a case that talks about what this community stands for." The Associated Press 3/28/06
"I am convinced that there was a rape, yes sir. Abrams Report 3/28/06
"There's not a doubt in my mind that she was raped and assaulted at this location." The O'Reilly Factor 3/29/06
"The 46 members of the No. 2 ranked team are united in silence and refusing to talk with investigators probing the rape case." ABC News 3/29/06
"Even if DNA results do not match team members, no one is necessarily exonerated. The attackers could have used condoms or might not have been team members." News and Observer 3/30/06
"If defense attorneys are angling for a change of venue, they wouldn't have much luck. After all the media have been here this week, we'd have to move it to China." USA Today 3/30/06
"There's been a feeling in the past that Duke students are treated differently by the court system. There was a feeling that Duke students' daddies could buy them expensive lawyers and that they knew the right people." USA TODAY 3/30/06
"In 75% to 80% of sexual assault cases, there is no DNA evidence. A lot has been said in the press, particularly by some attorneys...that this case should go away...I hope you will understand that my presence here means that this case is not going away...DNA results can often be helpful, but I've been doing this for a long time, and for most of the years I've been doing this, we had to deal with sexual assault cases the good old-fashioned way. Witnesses got on the stand and told what happened to them...The fact is anytime you have a victim who can identify her assailant, then what you have is a case a judge must let go to a jury. In this situation, I would suspect that a jury will get to evalutate the evidence...There are many types of DNA tests that can be done. It might surprise you, or might not surprise you, that we're still waiting for some DNA tests that have not been done...Certainly I have heard the criticism that if the situation were reversed, it's usually said that if this was a white girl and focus was on the N.C Central basketball team, they would all be in jail right now, and I understand that is a sentiment in the community, but I just want you to know, that's not the way I conduct business." USA TODAY 4/11/06
17. This conduct violated at at minimum the following Rules of Professional Conduct: Rule1.6 as it involved confidential information; Rule 3.4 in that such conduct was unfair to the opposing parties; Rule 3.6 in that the District Attorney should have reasonably knows his public comments would be disseminated by means of public communications and have a substantial likelihood of materially prejudicing an adjudicative proceeding; and Rule 3.8 regarding the special responsiblities of a prosecutor.
18. Additionally, according to a News and Observer article on Friday, April 28, 2006, Milik Zulu Shabazz, head of the New Black Panther Party, in a telephone interview stated that he and others plan to meet with DA Nifong about these cases on Monday, May 1, 2006. Upon information and belief, the New Black Panther Party is listed as a racist hate group by the Southern Poverty Law Center; and the Anti-Defamation League considers the Group extemely anti-Jewish. The Defendant has a Jewish parent. Any meeting with this group's leadership will only increase the negative and divisive nature of the publicity that DA Nifong has nurtured with his handling of this case.
------------------ end of motion pt II -----------
Mr. Nifong has also been speaking off the record about the case:
Nifong, a white man who is running for election in a racially mixed county, hinted to NEWSWEEK that blood and urine tests of the woman would reveal the presence of a date-rape drug.
Is there any doubt that district attorney, Mike Nifong, is a fool and a showboat? His name and face should be placed in the dictionary under pandering. He should be thrown off this case and out of office.
The Abrams Report, MSNBC, discusses the defense motion (May 1,2006):
DAN ABRAMS: All right, Mark, you‘re our North Carolina guy. Let me start with you. Look, no matter what you think about what the D.A. has said or done, this is a long shot motion, right?
MARK EDWARDS, NORTH CAROLINA DEFENSE ATTORNEY: Very long shot, Dan. I like the notion and I think, in part, it may have been filed to also get this information about their client‘s innocence out to the potential jury pool again. And if that was the real motive, I think I may have waited a little bit closer to the trial time to follow that.
But it‘s a creative motion. I like it. But I don‘t think it‘s going to go very far.
ABRAMS: Yale, I mean, look, the defense team wants to make a point. It‘s clear they don‘t like the way the D.A. has acted. But the chances of getting the D.A. thrown off the case by a judge, that‘s a long shot.
YALE GALANTER, CRIMINAL DEFENSE ATTORNEY: Yes. I mean, the shot of this motion being granted is somewhere between slim and none.
I disagree with Mark. I don‘t like the motion. In part, frankly, the reason I don‘t like the motion is because it‘s couched improperly. This should have been couched as a motion to dismiss for prosecutorial misconduct. The remedy for prosecutorial misconduct is not throwing a D.A. off the case. The remedy in a court of law is dismissal of a charges or and collusion of evidence.
And that‘s why I don‘t like it. I mean, legally it‘s just not well founded. It‘s not based on a real conflict. It‘s based—you know, it‘s articulate and it‘s creative. But it‘s just not well couched in law. It should be a motion to dismiss for prosecutorial misconduct, because the facts are laid out as if it‘s a misconduct motion.
Duke Rape Case: Prosecutor Mike Nifong Shares Evidence with Black Panthers [TJN, May 3, 2006]