Tuesday, August 08, 2006

Duke lacrosse: Neff’s story looks even stronger now

Today’s Raleigh N&O has a front page correction of a dating error in reporter Joe Neff’s Sunday, Aug. 6, story, "Lacrosse files show gaps in DA's case."

Neff said a memorandum by Durham PD Inv. Michelle Soucie was written on April 17. In fact, the memorandum was actually written of April 4.

In its correction, "Story on Duke case erred on DA's order,"the N&O says:

“This error changes the implication of the first five paragraphs of the story: that the conversation between Nifong and Soucie was an example of the words and actions of police and persecutors outpacing the facts in the file.”
No, the dating error doesn’t do that. As historian and blogger KC Johnson points out :
“[I]n fact, as Neff’s original article claimed, “the conversation between Nifong and Soucie was an example of the words and actions of police and prosecutors outpacing the facts in the file.” (bold KC’s)
Look at just some of what KC lays out to contradict the N&O's correction and demonstrating that Neff's article is far more damning of Nifong's conduct than many people, including me, realized. An excerpt from KC post, “The Soucie Memo:”
Neff made a rare error, however, in the story, inaccurately describing a memorandum by Durham PD Investigator Michelle Soucie as having been penned on April 17, when actually the memo was written on April 4. The N&O promptly issued a correction.

The error, however, meant only that Neff’s story was excessively kind to Nifong, and affected none of the story’s conclusions. The material in the excerpted portions of the Soucie memo, in combination with other facts and documents already publicly available, reinforces the pattern of this case: the more material released, the more indefensible Nifong’s behavior appears.

The previously unreleased Soucie memorandum brought four items to light. In its correction statement, the N&O writes that the corrected date for the memorandum (from April 17 to April 4) “changes the implication of the first five paragraphs of the story: that the conversation between Nifong and Soucie was an example of the words and actions of police and prosecutors outpacing the facts in the file.”

The words of the correction were poorly chosen. For, in fact, as Neff’s original article claimed, “the conversation between Nifong and Soucie was an example of the words and actions of police and prosecutors outpacing the facts in the file.”

Before April 4, Nifong gave dozens of interviews to the state and national media commenting with certainty on the “events” of the “rape.” Here are three typical examples of his remarks:

March 29, MSNBC:“The circumstances of the case are not suggestive of the alternate explanation that has been suggested by some of the members of the situation. There is evidence of trauma in the victim’s vaginal area that was noted when she was examined by a nurse at the hospital.”

March 29, WRAL: “My reading of the report of the emergency room nurse would indicate that some type of sexual assault did in fact take place.”

March 30, CBS News: "The victim was examined at Duke University Medical Center by a nurse who was specially trained in sexual assault cases. And the investigation at that time was certainly consistent with a sexual assault having taken place.”

Yet, days after Nifong made these and other similar statements, Soucie recorded the following, according to the memo the N&O uncovered: "Mike Nifong stated that: Also need documentation on escort service and how they do business. Need to nail down what victim did on the day before arriving at 610 N. Buchanan so we can show that she did not receive trauma prior to the incident—with witnesses."

Neff’s original conclusion is correct: Nifong “had said repeatedly on national television that he was certain the dancer had been raped. Yet the prosecutor was still trying to rule out other explanations for the vaginal swelling a hospital noted in its examination of the accuser. The words and actions of police and prosecutors had outpaced the facts in the file, and not for the first time.”(Bold added)

This memo, in short, is the clearest example to date of misconduct by Nifong in his public remarks. Not only was he violating the state bar’s prohibition against statements “that have a substantial likelihood of heightening public condemnation of the accused,” he was, to put it bluntly, dissembling.

Shortly after he dismissed “the alternate explanation” for the accuser’s alleged injuries (which, as things turned out, were far less severe than the D.A. claimed) to MSNBC, Nifong admitted to Soucie that he wasn’t sure if an “alternate explanation” did exist—namely, that “what [the alleged] victim did on the day before arriving at 610 N. Buchanan” could explain her trauma.

Neff’s words—“the words and actions of police and prosecutors had outpaced the facts in the file”—are charitable in describing the misconduct here.

The N&O obviously had to issue a correction regarding the date of the Soucie memorandum, pointing out that it was written before Nifong sought indictments. But, contrary to the insinuation of the correction text, the memo’s earlier date actually raises more questions about Nifong’s conduct, rather than weakening any of the article’s conclusions.

Three matters are immediately apparent.

First, the order contained in the Soucie memo had one immediate effect: the obtaining of the statement of Jarriel Johnson, the figure generally described as the accuser’s “driver.” Johnson provided his statement to police two days after Nifong instructed Soucie “to nail down what victim did on the day before arriving at 610 N. Buchanan.”

Unfortunately for the district attorney, however, Johnson’s affidavit - reproduced at page 27 of this motion (I was unable to access the motion - JinC)- provided no help in showing “that [the accuser] did not receive trauma prior to the incident.”

Johnson revealed that the accuser had engaged in a variety of private “events” in the hours before the lacrosse party, including at least one that involved use of a vibrator. As Liestoppers blog explained yesterday, “While Nifong instructed DPD to find witnesses to show that the accuser's nether region was unswollen, instead they found him Jarriel Johnson whose description of accuser's activities seemed to do the exact opposite. Nifong asked for proof that the swelling couldn't have been caused by the accuser's escort service activities, and instead found proof that it could very well have.”

Yet [Nifong] sought indictments anyway. The correct dating of the Soucie memo thus shows Nifong’s closed-mindedness to any evidence contradicting his theories as early as April 6. So much for his duty, under the state bar’s ethics code, to serve as “a minister of justice.”
There is a lot more in KC's post, all of it just as devastating to Nifong's "case."

When you finish KC's post, I hope you agree that the N&O needs to correct today's correction. As the N&O's correction now stands, it tells readers something KC's post demonstrates is not true.

I'm going to make a comment at the N&O exec editor for news Melanie Sill's Editor's Blog. I intend to ask Sill to read KC's post and than prepare a much needed correction of the N&O's erroneous statement today that a simple dating error:
“changes the implication of the first five paragraphs of the story: that the conversation between Nifong and Soucie was an example of the words and actions of police and persecutors outpacing the facts in the file.”
I'll also will request the N&O conduct and publish a major interview with KC.

I hope many of you do the same.

Throughout the Duke lacrosse hoax the N&O has served readers anonymous interviews with the woman it called "the victim" and some of her family members. It's also served up interviews and op-ed columns from members of the now discredited and widely-ridiculed Duke faculty Group of 88.

The N&O should now give readers something very different: a major story/interview with a distinguished historian who's remarkably well-informed about Nifong's actions and how they violated investigative procedures and bar association ethics and guidelines.

If you want to email Sill it's: melanie.sill@newsobserver.com

N&O's public editor Ted Vaden's email is: ted.vaden@newsobserver.com

I hope you all make your voices heard.


Anonymous said...

This informative blog by John demonstrates that top editors inside the N&O are biased against the Duke students. By overreacting to an error in Neff's otherwise excellent story, they have made Neff's error look worse than it actually is and show an ignorance of the facts of the case. Once again, shame on the N&O and its top editors.

Anonymous said...

When the books are written, the N&O will look like the worst paper in the country, their editors each a disgrace to their profession. When will somone file ethical charges against Nifong--and does the Govenor have the influence to fix the N. Carolina Bar?

Anonymous said...


Paper Admits LAX Story Mistake
WTVD By Anthony Wilson

(08/08/06 -- RALEIGH) - The News and Observer admitted Tuesday that parts of a story about the Duke lacrosse rape investigation were wrong.

The newspaper admits that the first five paragraphs of a big Sunday story about the investigation got the date and other key information wrong.

"I was curious as to how it happened, and I was concerned that it was such a substantial error that it could impact readers' overall perception of the story," said Ted Vaden, the paper's public editor.


Vaden is writing a column about the snafu, which will be published Sunday.

Anonymous said...

Anthony Wilson of WTVD has aired a report on the error in N&O's Sunday Joe Neff story. I must have missed Wilson's report on the original story. Could someone please post it somewhere?

Walter Abbott

LieStoppers said...

As always, a comprehensive and insightful offering. Well done.

Anonymous said...

It's a pity. In my opinion, the N&O could not have undercut Neff's story better, if they had tried undercutting it on purpose.

Anonymous said...

Do you think a few Nifong apologists in the newsroom wanted to find a way to undercut his story?

ME said...

To those above, thanks for the alert to the Ted Vaden commentary and his quotes in the WTVD article.

I have posted a critical and detailed reply (with questions) to Vaden's commentary at Vaden's Blog and elsewhere. One of the places I posted my commentary is above at the JinC Aug 8 3:50 pm comment section.

I encourage all of you above and any others that may be interested to read my commentary (above at 3:50 pm comment section).

Vaden solicited comments and I encourage anyone that is interested to provide some much needed enlightenment to Vaden.


Michael Gaynor said...

Cynthia McKinney's Loss Bodes Well for Durham and Duke Three

It was as simple as ABC. On August 7, 2006, in Georgia's Fourth Congressional District, the ABC (Anybody But Cynthia) candidate, Hank Johnson, won nearly three-fifths of the vote in a Democrat runoff against incumbent and local political legacy Cynthia McKinney, the Capitol Hill policeman whacker, Congressional slacker and loony September 11 theory backer. Playing the race card may have saved Ms. McKinney from indictment in the District of Columbia, but Hank Johnson is black too, so that primary runoff became Ms. McKinney's Waterloo.

There is an important message in that delightful development for Durham County, North Carolina and the powers that be there, including District Attorney Michael B. Nifong, who succeeded in winning the Democrat primary on May 2, 2006 by proclaiming his certainty that Crystal Gail Mangum, an ex-convict stripper/"escort" who happens to be black, happened to be sent by her employer to perform at an off-campus Duke Men's Lacrosse Team party and happened to claim as she was about to be incarcerated that she had been gang raped at the party and eventually picked the Duke Three (Collin Finnerty, Reade Seligmann and David Evans) as her "rapers" (NOT that any of them, especially Collin, matches any of her descriptions of the three she claimed raped her, when she wasn't claiming the number was 20, or 5, or ).

Ms. Mangum has been a nightmare for the falsely accused, wrongfully indicted and shamelessly prosecuted Duke Three. For Mr. Nifong, however, Ms. Mangum was opportunity knocking. Short-term opportunity, that is Mr. Nifong was on course to lose the Democrat primary for the office for which he had yearned and to which he had been appointed but never elected on May 2, less than two months after the date of the alleged gang rape (March 14) to Frieda Black, a former colleague. Ms. Mangum, because she is black, provided Mr. Nifong, who is white Democrat politician, with an opportunity to pander to the black voters (critical in a Democrat primary in Durham County, North Carolina) by publicly endorsing Ms. Mangum's claim to have been gang-raped, proclaiming that he would find and prosecute her alleged attackers and proceeding to indict white Yankees from wealthy families.

It worked! As Sports Illustrated reported, Mr. Nifong "polled 2 to 1 among African-American voters, an advantage that more than accounted for his victory margin of 883 votes."

Ordinarily, winning the Democrat primary in Durham County is tantamount to winning the general election (as demonstrated by the Republican Party having opted not to have a candidate in the race). But, the circumstances are anything but ordinary. Lewis Cheek, a Democrat Durham County Commissioner, amassed about 10,000 signatures and his name will be on the ballot in November.

Mr. Cheek will vote for himself, but he has chosen not to campaign and declared his intention not to serve if elected. But he is the ABN (Anybody But Nifong) candidate and, unless the anti-Nifong is split by a Durham Republican running as a write-in candidate, enough good people of Durham County will appreciate what kind of person Mr. Nifong really is (hint: NOT the champion of the innocent victims he pretends to be) and Mr. Cheek will win a majority of the voters without personally campaigning.

The bulk of Durham County's black (like the bulk of Durham County's whites) eschew racism and aspire to see the dream of Dr. Martin Luther King of "a nation where [people] will not be judged by the color of their skin but by the content of their character" realized.

The bulk of Durham County voters, regardless of race, will punish Mr. Nifong for mocking that dream and pandering to blacks looking for scapegoats when they realize that is what he did. Ironically, this time a shameless, opportunistic Southern white male is preventing a couple of white males from completing their college education at a Southern university as they have a right to do, by pursuing a wholly unwarranted political prosecution that ingratiates him to blacks who have been misled as to the facts (and blacks who don't care about the facts).

There IS a segment of the Durham County black community that supports prosecuting innocent whites as compensation for abuses of blacks. Thus, in the May 1, 2006 Newsweek issue, it was reported that Chan Hall, 22, a student at North Carolina Central University (Ms. Mangum's college), "said he wanted to see the Duke students prosecuted 'whether it happened or not'" because "[i]t would be justice for things that happened in the past."

When Mr. Nifong won the primary, the word was out from defense attorneys that the first round of DNA tests did not link any white male Duke lacrosse player to the alleged rape, but Mr. Nifong was assuring all who would pay attention that Ms. Mangum had been raped and awesome alibi evidence for Reade Seligmann had been disclosed, but neither Reade nor Collin Finnerty was offering to take a polygraph test and demanding Ms. Mangum do the same, Collin's defense team was not keeping his alibi secret, it became generally known that Collin and a couple of other (non-Duke) lacrosse players had been charged with assaulting a couple of men in the District of Columbia and many Durhamites (example: Ruth Sheehan of The News & Observer) assumed that their District Attorney had to have compelling evidence of guilt that he would disclose in due course and was fighting the good fight on their behalf against a phalanx of high-powered, high-priced lawyers hired to get those rich white Yankees off somehow.

Since then, however, May, June and July have come and gone. Ruth Sheehan, who was disposed by personal experience to believe the charges, admitted that she had been assuming too much. Even better, The New & Observer got the 1800 pages of Nifong production and realized that there's no there there. On Sunday, August 6, 2006, The News & Observer published a blockbuster by staffer Jeff Neff, titled "Lacrosse files show gaps in DA's case," declaring that "[a] review of prosecution documents in the rape investigation reveals that the district attorney's public statements promised more than the evidence released so far indicates." Mr. Neff misidentified a date, but he effectively made the case that the Duke Three had been wrongly indicted and the correction credited Mr. Nifong with seek some evidence before seeking an indictment but discredited him for seeking it despite the facts.

For months Nifong supporters had chided the defense team with cherry-picking, that is, releasing evidence favorable to their clients but not unfavorable evidence. In place of the presumption of innocence, the Nifong supporters were presuming he had evidence of guilt and the defense was buttressing the presumption by not stepping up and making the entire Nifong production public, thereby postponing the day the truth--that the charges were bogus--became common knowledge and Ms. Mangum and Mr. Nifong became the villains of the real-life soap opera that is the Duke rape hoax.

Ideally, long before the outrageous and unconstitutionally broad gag order was issued (July 17, 2006), the Duke Three should have presented one of the commentators calling for the case against them to proceed, such as Alan Colmes, with a complete set of the documents, because those documents damn their accuser and their prosecutor/persecutor, not them.

At the end of June, Collin's father announced on NBC ("Today") and MSNBC
("The Abram Report") that each of the Duke Three had passed a polygraph test. Ideally, they should have taken the test sooner and publicly challenged their accuser to do the same, pointing out that William Kennedy Smith's rape accuser passed polygraph tests twice (as well as a voice stress test) before he was prosecuted and Mr. Nifong was presuming them to be guilty instead of proceeding as a minister of justice seeking to ascertain the truth.

To his credit, Reade's attorney, Kirk Osborne moved to have Mr. Nifong removed from the case on May 1, 2006 (the day before the primary), because: "District Attorney Mike Nifong neglected his duties as a prosecutor to seek the truth and a fair prosecution. He created an actual conflict between his professional duty to search for the truth and his personal, vested interest in getting elected in the following ways: (1) he ignored the actual facts of the case which demonstrate the Defendant [Reade] could not have committed this crime; (2) he made a series of statement to the national media designed to bolster his election chances while prejudicing the case against the Defendant; (3) he improperly injected himself into the photographic lineup proceedings, causing the Durham Police Department to violate its own policies in an effort to provide himself a source of information from which to indict some, indeed any Duke Lacrosse players; and (4) he denied the Defendant aprobable cause hearing where the Defendant's actual innocence could have been shown and the gross deficiencies of the prosecution's evidence would have been exposed."

Perhaps filing the motion on the day after the primary instead of the day before would have insulated the motion from the suspicion that it itself had a political purpose, but the motion deserved to be promptly considered and granted. Collin's attorneys did not make a similar motion, presumably calculating that keeping the details of Collin's alibi a secret was a great tactic and perhaps even a needed protection for Collin's witnesses (since Reade's black taxi driver alibi witness promptly was harassed). Unfortunately, the judges that have handled the prosecutions of the Duke Three to date have put the motion aside and thereby permitted Mr. Nifong to continue as prosecutor/persecutor.

In addition to this meritorious recusal motion, there is pending an equally meritorious joint motion by all three defense teams to modify the gag order to remove "all potential non-lawyer witnesses, including the members of the 2006 Duke University Men's Lacrosse Team" (yes, that includes the defendants) and to make "all rules of professional conduct related to extrajudicial lawyer speech in a criminal case, including Rule 3.8 [of the North Carolina Revised Rules of Professional Conduct]" (that rule applies to prosecutors and Judge Titus neglected to include it within the purview of his July 17, 2006 gag order).

The public interest as well as the private interests of the Duke Three requires that the recusal and modification motions be heard and granted as soon as possible, even though it is not in Mr. Nigong's political interest for that to happen.

With or without the court's cooperation, the truth is going to prevail, sooner or later. Better sooner. And better with the court's cooperation.