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Tuesday, June 12, 2007

Nifong Hoax Hearing — Day 1 — June 12, 2007

Updated — today's items:

Mike Nifong and his wife Cy Gurney, right, arrive for his bar hearingBenjamin Niolet, News & Observer:
Contrasting pictures of Nifong emerge -- [State Bar prosecutor Katherine] Jean said in her opening statement that when Nifong told police investigators to seek indictments against Seligmann and Finnerty, police Investigator Benjamin Himan said he had real concerns about the case.

Himan had concluded that police had no evidence that Seligmann was even at the March 13, 2006, team party when a stripper said she had been raped. Himan's superiors expressed the same concerns.

Nifong got an indictment anyway...
Jon Ham, JohnLocke.org/Right Angles blog:
Jan. 11, 2007: Nifong speaks with Mangum -- Himan said he and Gottlieb were with Mangum and Nifong asked to speak with her alone. This was Jan. 11. Himan said Nifong told her at this meeting that he was recusing himself, asked her if she still wanted to go through with it, he told her it was going to be hard. She said she’d call him with her decision. If she wanted to go through with it he said he was going to drop the charges, but if she wanted to continue he’d give it to the state Attorney Genreal’s office, Himan said...

Jon Ham, JohnLocke.org/Right Angles blog::
Can you spell criminal conspiracy? -- It’s beginning to sound more and more like this was a concerted conspiracy to railroad the lacrosse players. I think some people are going down...

John in Carolina:
Nifong Trial (Post 1) -- When a tape of Nifong last spring laughing in court at a request by Reade Seligmann’s attorney, the late Kirk Osborn, for bail reduction was shown, [Wade] Smith was the perfect witness to have on the stand...
Durham police investigator - Ben HimanTamara Gibbs, ABC News:
Nifong Told Investigators 'We're &$#@!' -- There is a lot at stake for Mike Nifong and some potentially damaging testimony given in Tuesdy's hearing...

With Nifong watching closely, state bar prosecutors turned to Ben Himan, one of the lead investigators in the case. They picked apart investigator notes and procedures hoping to she light on why Nifong relentlessly pursued the case.

Himan revealed the D.A. was worried about the lack of evidence early in the case. He quoted Nifong as saying, "'You know we're @#$%!. There's no toxicology report.' Basically we went on with what he believed was wrong with the investigation."

The testimony was a bombshell in the courtroom. Himan then went on to say that Nifong was calling shots when it came to the photo line ups...
LS forum: I don't Believe Himan, about activities just before indictments
Aaron Beard, AP/NBC17.com:
Police: Nifong Pressed Troubled Case -- As Mike Nifong was calling the Duke lacrosse team a "bunch of hooligans" in public, a police investigator says the veteran prosecutor was also acknowledging privately that the accuser's story was filled with inconsistencies and the case would be a hard one to prove. . .

Himan testified that he was surprised when he learned that Nifong planned to pursue an indictment against Seligmann, sarcastically asking his superior, "With what?" . . .
Police: Nifong Moved Forward With Case, Despite Problems -- Mike Nifong acknowledged inconsistencies in an exotic dancer's story that she was raped, beaten and sexually assaulted at a Duke lacrosse team party but decided to move forward with the case anyway, the lead investigator on the case testified Tuesday. . .

Nifong also insisted pressing ahead on indicting lacrosse player Reade Seligmann, even though detectives could not place him at the party at the time of the alleged incident, he testified.

"We didn't have any DNA. We didn't have him at the party," Himan said of Seligmann. "It' was a big concern to me to go for an indictment when we did not even know where he was -- if he was even there." ...
John Stevenson, Herald-Sun:
Lawyers present conflicting portraits of Nifong -- A politically driven Mike Nifong eagerly pursued rape charges against three Duke lacrosse players as a way of advancing his odds of being elected, a State Bar prosecutor said as the case against the Durham district attorney opened in Raleigh today.

In her opening statement, prosecutor Katherine Jean said Nifong was in "a contentious political campaign to keep his office" and he leapt on the lacrosse case as a publicity-generating opportunity...
Duff Wilson, NY Times:
State Bar Weighs Law License of Duke Prosecutor -- The most dramatic moments came today from the Durham police detective who led the investigation, Benjamin W. Himan, who said he met with Mr. Nifong every two or three days. Mr. Himan said he had responded with disbelief when he learned Mr. Nifong planned to indict one student based on the word of the accuser, a stripper who had been hired to perform at a lacrosse team party.

At that point, Mr. Himan said, the police did not even know whether one of the suspects was at the lacrosse team party because his name was not on any list of attendees.

Mr. Himan said Mr. Nifong later told him that they had to believe the accuser on every suspect if they believed her on any suspect.

Mr. Himan also said he was “shocked” and “upset” that an investigator for the district attorney later interviewed the accuser by himself, not inviting him as the police investigator. When major inconsistencies emerged from that interview, Mr. Himan said, “It didn’t make any sense to what she had previously told us.”
News & Observer:
Nifong supporter removed from trial -- A vocal supporter of Mike Nifong was barred from the proceedings.

A lawyer for one of the former lacrosse players said the woman was asked to leave because she got in a confrontation with one of the player's mothers.

Victoria Peterson has turned up at most lacrosse-related events where television cameras were present. Even on Tuesday, after she was kicked out of the courtroom, Peterson hijacked a live shot on WRAL to argue why she should not have been barred from the courtroom.

James Cooney, a lawyer for Reade Seligmann, said he was waiting to get into the courtroom when he saw Peterson start talking to Collin Finnerty's mother.

Peterson became confrontational and said a lot of people in Durham believe Finnerty did something wrong, Cooney said.

After a break, Peterson was escorted out of the building by State Capitol Police...

WRAL: Spectator Removed From Nifong Ethics Proceedings

LS forum: Victoria Peterson banned from rest of hearing!!

comment: Victoria Peterson also wanted to burn down the Duke lacrosse house.
Nifong at Bar hearingWRAL:
Streaming Video of Nifong Ethics Trial

LiveStream Video of Hearing
comment: The NBC-17 video seems to be working better as of 10:53 am. Court-TV is having frequent news and commercial breaks.

LS forum: Defendant Nifong's Day of Reckoning has come, Nifong Trial

LS forum: Pre-trial Motion, 49 pages of legal goodness -- It has the facts stipulated for the case, witness lists, and schedule of exhibits.

FreeRepublic: Nifong ethics trial begins today
TalkLeft: Nifong Ethics Hearing: Part One
DBR: Nifong Hearing...

AP/Yahoo: photos from hearing
N&O: Video gallery: Nifong State Bar hearing

Pretrial Motion -- Stipulated Undisputed Facts [ .pdf ]
KC Johnson:
Live blogging from hearing --
Himan Bombshells [4:59 pm]-- Gottlieb and Soucie, after meeting with Nifong, report that Nifong said he wanted to go ahead with indictments. Himan: "With what?" ...

Meets individually with Nifong to discuss his concerns with decision to go ahead with indictments. Nifong: "If you believe her story in one part, you've got to believe her story in another part." ...

Himan Testimony [2:55 pm] -- At this initial briefing, discussed: execution of search warrant; complete cooperation of three residents of 610 N Buchanan; interview with Kim Roberts and Roberts' complete denial; failure of Mangum to identify in any of the initial photo array; that there was no one at party who made statement corroborating Mangum's statement about rape.

Nifong brought up inconsistencies in Mangum's stories. He made the comment, "You know we're f**ked." . . .

Victoria Peterson Ejected [2:50 pm] -- Nifong citizens' committee co-chair Victoria Peterson has just been removed from the courtroom, allegedly for threatening a witness...

comment: Peterson broke into a live WRAL broadcast "to claim she was thrown out for no reason. She claims she wasn't even in the courtroom at the time."

Wade Smith Cross-exam [2:07]

Morning Highlights [2:01] -- most mindboggling line of defense: that Dr. Meehan made the statements he did in the Dec. 15 cross-examination from Brad Bannon because Nifong had not “prepped” Meehan. How, it could be wondered, would “prepping” Meehan have made the lab director more likely to tell the truth?

Wade Smith: Asked if he ever had dealt with anything like Nifong as prosecutor--said no.Wade Smith Testimony [12:11 pm] -- Nifong statements "took this case out of the court system and deposited it in the hands of the public."

Had never seen anything like Nifong's derisive laughter at Kirk Osborn when Osborn said that Reade Seligmann had an airtight alibi. [Nifong was smirking as Smith recalled this story.] . . .

Freedman Statement [10:37 am] -- Concedes that Nifong did meet with Meehan on 4-10--despite Nifong's previous denial.

Nifong had never used Meehan before. Nifong never asked Meehan to exclude anything from his report. Nifong never told Meehan how to write report.
[This is the blame-Meehan defense.] . . .

NC State bar official Katherine JeanJean Statement [10:15 am] -- March 27--Nifong learns that Mangum had twice recanted. . .

Himan speaks to Nifong--Himan expresses grave concerns about going forward with indictments of Seligmann and Finnerty--Nifong says to go ahead anyway, even though the police had no evidence that Seligmann was even present. Himan goes to superiors to express concerns--they go to Nifong--Nifong overrules them...

In the Courtroom [9:12 am] -- Ben Himan just made an appearance with the Bar's prosecutors, as they prepare their PowerPoint presentations...
Nifong after Wade Smith testimonyLieStoppers:
DA Nifong responding to Wade Smith's Testimony [photo right] -- Wade Smith has concluded his testimony and DA Nifong was captured in this undoctored photo responding to his testimony.
Mike McCusker: Roll Away The Dude...
Why didn't I drop the case?

Joan Foster, LieStoppers:
Nifong's Lament --
To the extent that I did bad things
It's because I was a dope.
I was very inexperienced,
So I didn't know the ropes.

I thought I could say anything.
Oops! Oh well, my bad.
Who knew that all my pandering
Would make the locals mad?...
CNN: Duke prosecutor's ethics trial begins -- Nifong aggressively pursued the case against the players, at one point calling the lacrosse team "a bunch of hooligans" in a newspaper interview.

That interview, along with several others made in the case's early days, formed the basis of the bar's initial complaint against Nifong, which said he made misleading and inflammatory comments to the media about the athletes.

"I believe you will hear him testify that he regrets making those statements," said Nifong's attorney, David Freedman, in his opening statement...
Aaron Beard, AP/CBS News:
Duke Lacrosse Prosecutor Faces Own Trial -- More than a year after shocking allegations emerged about Duke University's lacrosse team, prosecutor Mike Nifong was back in court Tuesday _ this time as the defendant...

Jean said a Durham police investigator would testify that Nifong pushed the case against Seligmann even when told there was no evidence linking him to the scene of the alleged crime. Freedman responded that Nifong told police only that if they believed the accuser's allegations against Finnerty, "then you have to believe her on Seligmann." ...
Joseph Mallia & Ann Givens, Newsday:
Ethics trial against Duke prosecutor begins -- The prosecutor said that after Nifong drew the world's attention to the Duke case, he "repeatedly and intentionally misled the media" which in turn misled the public...
News & Observer:
Assistant Forsyth DA appointed to lacrosse committee -- City Councilman Howard Clement has appointed Belinda Foster, assistant district attorney in Forsyth County, to the committee investigating the Durham Police Department's handling of the Duke lacrosse case.

Foster's appointment completes the 12-member committee, which Mayor Bill Bell has said he wants to begin work next week...
Anne Blythe, News & Observer:
Nifong's misconduct trial starts today -- Durham District Attorney Mike Nifong, under fire for his handling of the Duke lacrosse case, begins his battle this morning against professional misconduct charges brought by the N.C. State Bar...

Among the likely witnesses are police investigators, a sexual assault nurse at Duke Hospital, the head of the private lab that performed DNA testing and Nifong himself. The proceeding is expected to wrap up by Friday...

Attorneys David Freedman and Dudley Witt, two Winston-Salem lawyers representing Nifong, will be able to cross-examine witnesses the Bar calls.

The hearing will be in two parts. The first is to determine whether the charges have merit. If the panel decides they do, a second phase determines the punishment, the most severe of which would be disbarment. The disciplinary panel does not have the power to impose criminal penalties or remove Nifong from office.

The panel could announce the outcome this week or deliberate further. Typically, the outcome is announced immediately....
Interview, National Review:
Royal Injustice -- A Duke treatment. -- As Durham, North Carolina District Attorney Mike Nifong headed to trial on ethics charges, Duke alum Nader Baydoun, coauthor of the new book The Rush to Injustice: How Power, Prejudice, Racism, and Political Correctness Overshadowed Truth and Justice in the Duke Lacrosse Case, took questions from National Review Online editor Kathryn Lopez about the Duke lacrosse fiasco and the lives it forever changed...
Lopez: You’re obviously impressed by Reade Seligmann, Colin Finnerty, and David Evans? Why? By what most?

Baydoun: Nifong could not have chosen three individuals who were less likely to commit the horrible crimes alleged by the accuser than these young men. Their records are exemplary. They are good students who have been regularly involved in community-service volunteer work in their spare time. Everyone that I interviewed about these young men spoke about them in glowing terms...
KC Johnson:
Nifong's Guessing Game -- There seems little doubt that Mike Nifong will play the “Blame Game” in his ethics trial, scheduled to begin this morning at 10am. The Durham Police, especially Officer Ben Himan and Sgt. Mark Gottlieb, appear to be his likeliest target. Nifong also has strongly suggested that he will allege selective prosecution. And enablers of the DA have floated the argument that he should be forgiven for any ethical improprieties since he had faced no previous ethics allegation.

While these lines of defense are all easy to predict, it’s harder to determine how Nifong will respond to the Bar’s allegation that he conspired with Dr. Brian Meehan to withhold exculpatory DNA evidence. He has offered no fewer than thirteen separate explanations—some of which are mutually contradictory—on this issue. . .
Joan Foster, LieStoppers blog:
Defendant Nifong's Day of Reckoning -- The "unthinking crowd" no longer cheers the swaggering, self-aggrandizing District Attorney from Durham. When he slinks before the Bar tomorrow, one doubts MSNBC's Susan Filan will entertain us with drivel about how "confident" Defendant Nifong appears. The inflamed "civic conscience" that won for him his election, now burns with the embarrassment at being publicly "played" and pandered to...on a national stage. Nifong will face his peers in the strong presence of the three young men whose citizenship he "degraded", whose lives he upended, for his own petty political needs and a small pension upgrade. So much evil and heartache for such a low-rent "reward." Well, it's time for Mike to face the Paymaster. There are many in line with large cosmic "accounts" on the ledger and payment has finally come due. . .
LS forum: Shattering the "Nifong was a good guy" myth, He never was a "good guy"
LieStoppers: da loses opening face off
Prof. John F. Banzhaf III, FODU:
DA Nifong’s Explosive Ethics Trial Begins Tomorrow -- He Faces Risk on at Least Three Legal Fronts, Says Law Prof -- 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...
LS forum: Any 11th Hour Rumors?
Joseph Santoliquito, Philly.com:
Return to Duke might make business sense for McDevitt -- Tony McDevitt doesn't want to be plagued 10, 15 years from now by the thought of "what if." The third-team Duke All-America defenseman has been given a second chance by the NCAA, as have the rest of the freshmen, sophomores and juniors on that tragic Duke 2006 men's lacrosse team who had their season canceled over false rape allegations.

McDevitt, a 2003 Penn Charter graduate, is thinking hard, very hard, about returning next year and playing the extra year of eligibility the NCAA has granted him and his Blue Devils teammates...
Doug Doughty, Roanoke Times:
The untold story of Duke's ex-lacrosse coach -- One of the best stories in college lacrosse this year revolved around Bryant College, the Division II program headed by ex-Duke coach Mike Pressler...

I'm not letting Pressler off the hook, though. What he did this year was nothing short of remarkable, beating No. 1 Lemoyne and taking Bryant, a nine-year program in Smithfield, R.I., to the brink of the four-team Division II playoffs. It was a story worth telling.
Ernie Palladino, Journal News (NY):
Bryant's Kaufmann, a Mahopac graduate, thrives under Pressler's lacrosse system -- Bryan Kaufmann knew this year was going to be different.

Not that the Mahopac graduate had a bad freshman year on the Bryant men's lacrosse team, what with 32 goals and 42 points. But this year he got a gift.

Mike Pressler...