Let’s flip “Nifong & the Copier”

On Wednesday, I posted “Nifong & The Copier: Be Careful.” It concerned a report in a recent N&O series written by investigative reporter Joseph Neff. If you are not familiar with Wednesday’s post, I urge you to read it before reading this post

Neff reported that DA Mike Nifong first learned about a Durham Superior Court nontestimonial order (NTO) directing all 46 white members of Duke’s Men’s lacrosse team to submit to DNA testing and mug and torso photographing by Durham City Police when Nifong discovered the NTO sitting on his office copying machine. That was March 23, 2006, the day the court issued the order.

Nifong’s chief assistant district attorney, David Saacks, requested the NTO which was promptly signed by Nifong’s long-time friend, former boss and mentor, Judge Ron Stephens.

Neff cited two sources for his copier discovery report.

One source only learned about the “copier discovery” months later, and from Nifong himself.

Neff’s other source was David Saacks.

I’m very skeptical of the “copier discovery” story. In Wednesday’s post, I gave some of the reasons why it is to both Saacks’ and Nifongs’ advantage to be able to say Nifong only learned of the NTO on 3/23/06, the day it was signed.

In today’s post, I want to do a flip.

Let’s put aside all those sticky questions a special prosecutor or an investigative grand jury would ask Nifong and Saacks if the two had spoken about the NTO before Saacks requested the NTO and Stephens signed it.

Instead let’s consider that Saacks never mentioned the NTO to Nifong.

Let’s also allow that after learning all he could from Durham police investigators and their supervisors about the “Duke gang-rape,” Saacks weighed “the facts and the law.”

After doing that we are now to believe Saacks made what attorneys tell me was, as far as they know, an unprecedented request to a North Carolina court to order 46 citizens to submit to police DNA testing and mug and photo lineups based solely on their race and membership on a sports team.

What convinced Saacks to do such a thing? The case was at best very weak.

Most attorneys have told me they were shocked, even allowing for Stephens’ prosecutorial background the included service as Durham DA, that he signed the order without asking a lot of tough questions.

One attorney said: “The order was a wide-net DNA fishing expedition. Judges have always frowned on such requests; and questioned them closely.”

Another attorney: “If you had asked me before, even knowing that courts tend to give prosecutors the benefit of the doubt, I would have said Stephens would have refused to sign the order.”

I’ve read the NTO. It casts such wide net that it even acknowledges some of those Stephens was asked to order to submit to police DNA testing and photographing weren’t even at the party where “the horrific crime” was alleged to have taken place.

What convinced Saacks to go ahead with his NTO request?

Attorneys always consider “what ifs.” Let’s assume Saacks felt confident Stephens would sign the order with no questions asked.

Saacks still had to consider many “what ifs,” including: What if one, some or all 46 players appealed the order?

Yes, all 46 readily agreed to comply with the order but Saacks didn’t know in advance they’d waive their right of appeal and immediately comply with the order. Didn’t Saacks say he needed the NTO because the players were refusing to cooperate?

What if just one player who hadn’t been in Durham the night of the party appealed the order?

How would Saacks explain wanting that player tested and photographed by police? What would law professors at Duke and UNC with histories of opposing wide net DNA fishing say?

Didn’t Saacks have to consider all of that?

The NTO was sure to be a big story. If even one player appealed, and his attorney asked why the DA’s office could not make a narrower NTO request based on the alleged victim’s descriptions of her attackers, what did Saacks tell himself he’d say?

When the Raleigh News & Observer “broke” the “Duke lacrosse case” on March 24, the day following Nifong’s “copier discovery,” the N&O said nothing about “the victim’s” ability to identify her alleged gang-rapists.

The N&O said nothing about that in subsequent stories during which it framed the 46 lacrosse players as a group composed of three gang-rapists and their teammates who were covering up for them.

But Saacks couldn’t have known the N&O would go for framing the players rather than news reporting, could he?

What did Saacks tell himself he’d say when an N&O reporter asked what should have been asked on March 23: “It’s 10 days since the alleged attack. Why hasn’t the woman ID’ed any of her attackers; or at least given you descriptions of the attackers that would let you eliminate some of the 46 as suspects?”

With all of the above and more for him to consider, why did Saacks, if we’re to believe the N&O story, decide, in effect: “Nah, I’ll say nothing to Mike. He can read about the NTO in the papers or discover it at his copier?”

One of Collin Finnerty’s attorneys, Michael Cornacchia, has asked that a special prosecutor and/or investigative grand jury examine the actions of many people who may well be innocent of any crime but who were somehow involved in actions connected to the frame-up.

Among those whose actions Cornacchia says should be investigated are “members of Mr. Nifong’s office.”

As far as I’m concerned, that needs to happen.

What do you think?

HELP WANTED: Can anyone provide me with a link to the full NTO request Stephens signed. I want to post it.

Thank you to Liestoppers.com for posting Cornacchia’s letter.