Wednesday, April 25, 2007

Nifong & The Copier: Be Careful

On April 14, 2007, Raleigh News & Observer reporter Joseph Neff began a five part series on Nifong & the Duke Hoax case. Neff’s first series article begins:

Mike Nifong found out about the case that now threatens his career March 23, 2006, when he stopped by the office copier and found a court order demanding DNA samples from 46 Duke lacrosse players. An escort service dancer told police that three men at a team party had dragged her into a bathroom and raped her anally, vaginally and orally for 30 minutes, according to the order.
The Durham district attorney's reaction, he later told lawyer Jim Cooney: "Holy crap, what is going on?"
In his source notes, Neff cites two people as sources for his report Nifong only learned about the nontestimonial court order (NTO) on 3/23/06 when he discovered it at his office copier.

One is Jim Cooney, an attorney for Reade Seligmann. As Neff noted in another series article, Cooney first met Nifong in December, 2006, nine months after Nifong’s “copier discovery.”

Neff’s use of Cooney’s “Holy crap, what is going on?” account of Nifong’s reaction gives a seeming “You are there” dimension to the “discovery” story but, as Neff makes clear, what Cooney says is based not on Cooney’s observation of Nifong’s “discovery,” but on what Nifong told Cooney.

And we know about the reliability of what Nifong tells attorneys, judges, and all of us.

Neff’s only other source for his “copier discovery” report is David Saacks, Nifong’s chief assistant district attorney. It was Saacks who signed the NTO request.

Saacks certainly could have been standing right by the copier when Nifong made his “discovery.” Or he could have been down the hall in his office and heard Nifong exclaim, “Holy crap, what is going on?”

Maybe “the discovery” happened just the way Neff reports it.

But that means Saacks went ahead and got the NTO order without ever discussing it and the hugely troubled and hugely politically significant “Duke gang-rape” case with Nifong, who was then in a hotly contested primary race for the Democratic nomination for DA.

Did Saacks go ahead without saying anything to Nifong? Did Nifong really know nothing about the case until he made his “Holy crap” “copier discovery?"

Color me very skeptical of what Joe Neff reports.

There’s one thing we can all be sure about: It’s greatly to both Saacks' and Nifong’s advantage to be able to say they never spoke about the NTO before 3/23/06.

If they didn’t speak about it, there’s no need to ask sticky questions such as:

Before seeking an unprecedented NTO to obtain DNA and mug and torso photos from 46 citizens based solely on their race and membership on a sports team, what did Durham’s District Attorney and its Chief Assistant District Attorney say to each other about the accuser’s failure to ID any of the alleged rapists?

Did they say to each other anything about police officers’ and the second dancer’s statements that the accuser’s story was a “crock?”

What did they say about hospital records from Duke and the accusers many conflicting stories?

Folks, I hope you take a look at this comment from a citizen journalist at the Editors’ Blog. The comment includes a lot of information we should all bear in mind before accepting as fact Neff’s account of Nifong’s “copier discovery.”

Recently attorney Michael Cornacchia, representing Collin Finnerty, one of the three innocent men framed by Nifong and others sent NC Governor Michael Easley and Attorney General Roy Cooper a letter in which Cornacchia made a number of requests, including:
that a special prosecutor be appointed, either an attorney in private practice of the highest caliber and integrity, or members of General Cooper's Special Prosecution Unit who demonstrated their professionalism so well in their recent investigation,.
Once appointed, a special prosecutor can seek court approval for the convening of an "investigative grand jury" pursuant to NCGS Section 15-623.

There is ample predicate for this. After all, General Cooper has found that Mr. Nifong and the Durham Police Department arrested and prosecuted three innocent, young men for crimes that did not occur. …

It has been said that the institution of ethics charges against Mr. Nifong is sufficient to address the situation. This is not so. This forum only will determine if the codes governing the conduct of attorneys, generally, and district attorneys, specifically, have been broken by only Mr. Nifong.

It will not, and cannot, address the conduct of the members of Mr. Nifong's office, the officers of the Durham Police Department and others such as Mr. Meehan. …(emphasis added)
I hope a special prosecutor is appointed and a “investigative grand jury” impaneled.

And at some point during the investigation, it will be very important to ask Saacks and others in Nifong’s office whether Nifong really only learned about the case and the NTO when he said he had his “Holy crap” moment at the copy machine.

No one in Nifong’s office discussed the case, including the NTO, with him before 3/23/06?


For a much more positive take on Neff’s report of the “copier discovery,” see KC Johnson’s post: “Neff’s Scoops”

Hat tip to Liestoppers. com which published Cornacchia’s letter in full on its main page. The letter is very interesting. Read it if you have time.


wayne fontes said...

I've never bought the story Nifong just found some documents on the copier. My understanding of the NTO is that it was so broad any evidence discovered may not have been admissible in court. I can't believe that this order wasn't discussed with the top DA in the office.

Comments from the lawyers?

Anonymous said...

Most private attorneys offices have copiers that automatically bill to a particular customer's particular work item.

Wonder if the public defender has anything like that?

Or if there are timecards, diaries, or meeting notes that can help confirm/deny this account?


Anonymous said...

John - good article - Don't believe for a second the Holy...story. Do people really talk like that - "like the put marks on me" quote. Most boss's tell their employees "No surprises - More information is better is than less." Neff's claim to fame is he didn't join with the mob.

Anonymous said...

John: Your argument is compelling. It's another reason we need a thorough federal investigation of the corruption in the Durham police department, in the prosector's office, in the city of Durham, in the so-called Durham and North Carolina legal systems, in the abusive grand jury process, et al. Cooper also should launch a North Carolina investigation. Contact your congressional representatives.

AMac said...


This is a useful post. Like many, I suspect, I read Neff's account as a factual statement of what Nifong said, not as an account of what happened. If that man mentioned it was raining, I'd still go outside and check.

The trap you point out is "it's all about Nifong." As you suggest, that honesty-impaired individual has prepared a buffet of explanations, among which confederates can amiably browse. Is "I found it on the copier" convenient for the Assistant District Attorneys who were at best sightseers and at worst actively advancing the Hoax? Well then--by all means! And if this tale's implications are disagreeable? Hrrumph, Nifong has no reputation for truth-telling, anyway.

A coalition of interests is well-served by the notion of Nifong Did It. This concept is so much better than Lunesta at helping the enablers get their beauty rest.

Neff is to be commended for advancing the story by recounting what Nifong said. We shouldn't become so cynical that we facilitate others' use of such 'revelations' to obscure their own conduct.

AMac said...

Ugh, my 9:08am comment is too opaque.

Neff recounted Nifong's "copier" story. Perhaps in the body of this post, J-in-C took a dig at Neff for uncritically giving Nifong a forum for an unsupported story. I thought so. But maybe I'm wrong on that.

My thought at 9:08am (if I was responding to an actual sentiment of our host) was that there has been so much evasion, careful phrasing, literary license, whitewashing, and airbrushing that it is easy to become jaded. But I thank Neff for presenting Nifong's account, even if it's concocted, and even if it seems to provide cover to some Hoax enablers.

Perhaps Hoax enablers in the D.A.'s office can use the Copier story as part of their cover stories. Fine. As some ex-post-facto explanations of the Group of 88 for their Listening Statement show (e.g. Prof. Davidson's N&O op-ed), it's easy to make stuff up, but hard to keep a complex story straight.

So, in my opinion, Neff wasn't helping Nifong's A.D.A. confederates (if any) at all.

bill anderson said...


I could not agree more with you. That story simply does not ring true. The only thing it tells me is that the corruption in the DA's office is pretty widespread.

Maybe some other people in that office need to spend some time in the crowbar motel.

Anonymous said...

The boys have been found INNOCENT.
Recuperating from surgery, I watched a lot of trials on Courtv. Unlike Stephens or Titus, none of the judges have been hacks except for Seidlin in Florida. I see the value of juries and testifying - people just can;t hold their persona that long if it is not them. Its starts to become obvious when they are making things up, etc. The founders knew what they were doing. Getting to trial is easy in everyother state but North Carolina. I saw one trial and retrial(after a hung jury) the never got a trial date. I don't forsee anyone except Nifong taking the fall, although I think Meeham and his Lab should be tried.