Friday, January 11, 2008

Nifong’s Copier “Discovery” Is A False Story

I’d like you to read an extract from a Apr. 25, 2007 post, Nifong & The Copier Discovery. Be Careful. I’m very confident the incident recounted in that extract is false regarding a very important claim.

The claim is that then Durham DA Mike Nifong first learned about what became “the Duke lacrosse rape case” on Mar. 23, 2006 after his Chief Assistant DA, David Saacks, had made an unprecedented and very likely unconstitutional request that a judge issue a nontestimonial order directing all 46 white members of the 2006 Duke Men’s lacrosse team to submit to police DNA testing and face and torso photographing.

In this post I want to tell you why the claim is false and suggest at least one reason why it was created.

Let’s start with the Apr. 25 post extract. The post began:

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. […]


In his testimony during the State Bar trial which resulted in his disbarment, Nifong testified he “discovered” the NTO just as Neff reported. Nifong estimated his Mar. 23 “discovery” occurred sometime around 4 pm.

But he had to know about the case before then. Here’s why:

By the morning of Mar. 14 a lot of people in Trinity Park (TP) already knew police had been to the house at 610 N. Buchanan Blvd. and that something "had happened" there.

"Did you see the two police cars there? Do you know what happened? Are you on the listserv?"

Trinity Park residents include Duke administrators, faculty, medical center personnel and other University staffers. It's home to a number of Raleigh N&O staffers, attorneys and others with regular business at the Durham County courthouse a mile or so away where the Durham DA and his staff also have offices.

So there was buzzing on Mar. 14 not only in TP but at Duke, the courthouse, other places and on the Net.

The buzz grew on Mar. 15 and got louder still on Mar. 16 when six or seven DPD cruisers were parked outside the house for hours and DPD Sgt. Mark Gottlieb subsequently emailed on a TP listserv seeking information from anyone who could help with the "investigation."

On Mar. 18 the N&O ran a story of a reported rape at the house; it ran a second story concerning it on the 19th.

Both stories ran in a part of the N&O's "B" section where local crimes are regularly reported. Many people involved in the criminal justice system routinely check that part of the paper.

I'd think a DA, especially one running for office, would check that part of the paper daily unless the DA wanted to be in a position where a citizen could ask about a reported crime in his or her neighborhood and the DA didn't mind having to say, "Gee, I don't know a thing about it. Why don't you give the police a call?"

On Mar. 19th adults at churches in TP were talking about the "horrible crimes" in their Sunday School classes.

A friend who teaches one of those classes later told me when his class met, it ignored the lesson for the day and "got right to talking about the case." My friend said there were "a few cool heads but most people were on fire."

With about five minutes of class time left, the class realized it should at least give the lesson a glance and did so. It then adjourned for coffee and to meet people from the other classes and those just arriving for the 11 o'clock service.

Do you know what my friend told me happened then?

He learned that in all the other adult classes folks had done just what they'd done in his class.

"Everyone" went to work on Monday, Mar. 20, at DU, DUMC, the courthouse, etc. and had lunch on 9th Street, Whole Foods, etc. Talk, talk, and more talk.

It had been a week since the party. During that week Nifong and his wife, Cy Gurney, had been campaigning for his nomination as the Democratic Party's DA candidate in the November election.

While we do newspaper ads and some TV spots and interest group endorsements count for a lot, campaigning in Durham still involves plenty of "retail" work: getting friends to host "deserts" and invite the neighbors in to meet you; getting out to service and fraternal club luncheons to be introduced and shake some hands afterwards; asking people what's on their minds and do they have anything they want to ask you.

But with all of that, Nifong, if we believe the "Holy crap" copier discovery story, knew absolutely nothing about the case on Mar. 20.

With his office only a mile from the house; with many supporters in TP; and getting out and about in the TP neighborhood and nearby as part of his campaign and talking regularly to "the courthouse crowd" he'd known for almost 30 years, had no idea there was anything going on that would later be called "the Duke lacrosse case."

And if his wife, Cy Gurney, well connected to many in TP, active in his campaign, a "partner" of many Durham activists and "victim’s advocacy" groups, and herself a courthouse regular by virtue of heading up the Guardian ad Litem regional program knew about the case, then we have to believe she didn't tell her husband Mike, the DA.

It's unbelievable, isn't it?

And folks, I've only taken the narrative up to Monday, Mar. 20.

If you believe the copier "discovery" story, you still have to get to about 4 o'clock on Thursday, Mar. 23, before Nifong learns anything about the case.

That's Mission Impossible.

On Tuesday, Mar. 21, The Chronicle published a story on the alleged crimes. It noted Duke was the owner of the house, quoted Dean of Students Sue Wasiolek as saying the University was awaiting the results of the police investigation. It mentioned Gottlieb had said the residents of the house had been cooperative. There was more to the story. Literally many thousands of people at Duke now knew something about the case.

Even Duke President Richard Brodhead has acknowledged he knew about the case by Mar. 21. (I'm not sure he didn't know before then, but that's for another post.)

Brodhead and thousands of others at Duke knew but Nifong didn't?

If you believe that, you must be a life member of MoveOn.Duke.

If you aren't convinced by now the copier "discovery" story is false, there's more I could say but I don't think I'd convince you.

Now to the question of why create the falsehood of Nifong only learning about the case on the afternoon of Mar. 23, after the NTO had been signed by his dear friend, mentor and predecessor as DA, Judge Ron Stephens?

This from my Apr. 25, 2007 Nifong & The Copier Discovery. Be Careful post:
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 accuser's many conflicting stories?
Folks, there are other reasons why I think the falsehood was created.

In a few days I'll post concerning them.

Right now I'm interested to hear what you think.

And I'm sorry this post got long.


Anonymous said...

As Nifong has admitted over and over again he isn't very focused or thorough, hence his avowal that he likes the open discovery law so he doesn't have to read the case files to see what should be turned over. This former DA is LAZY...very likely all of the Asst. D.A.s knew that and they just functioned without his involvement. Your arguments are quite persuasive if we were dealing here with a substantive, attentive person rather than one of Nifong's ilk.

Anonymous said...

Terrific post.

resistance said...

Yup, excellent post sir.

I am nowhere close to Durham, and know no one in the community. I do, however, know a considerable amount about the networks that arise in communities.
I simply refuse to believe that there was no leakage from Duke hospital on the days and nights following Mar 14th, particularly given the reports that Sgt Shelton supposedly aired his disbelief of the allegedly raped stripper. This would have given rise to the kind of outraged sensibility that is characteristic of those activists involved in these needed services.
That is precisely the kind of emotional energy that really makes these networks light up.
I believe that Gottlieb was contacted while at city hall that day (Mar 15), if not in fact, BEFORE his arrival. Is that in fact, what he was doing there in the first place. Remember that Gottlieb had a background while away from the force as an paramedic, and was involved in DV services himself.
I think that the message was transmitted via Levicy and Arico, to the DV and rape services groups, into the TP community, and to Gottlieb and Baker.
Cy was the one plugged into both the DV circle as a GAL, and as Nifong's election chair, into the community networks like TP.
John, it will take someone in the community who knows these channels, or who knows other people who know these channels (cross-group memberships and allegiances) to determine these things.

Please keep up your efforts. Remember that Burness was also tied into those community networks, as was Duke employee and administrator, councilman Mike Woodard. I believe that you are quite correct - Nifong knew about this within 24 hours of it happening, through Cy.

Anonymous said...

Terrific work, John. If you get to the bottom of the N&O's role — especially the origin of the infamous late March 2006 coverage — much will become clearer. The infamous story was a signal to the rest of the press that the lacrosse players were an easy target.

Anonymous said...

I think you make a very good case, John. I've been contemplating the very same issue in relation to the lawsuit. Well done my friend.

kbp said...

Thanks John,

We also have the order to obtain the medical records, signed before that "copier" episode date.

Lar said...

It has always been obvious that Nifong knew. When one is attempting to win a campaign that they are badly trailing in and decides to conspire to break federal and state laws to win that campaign that you knew you would have lost otherwise, you do keep what was done quite and lie to cover your exposed azz. Of course the hoax was "framed" during this time as a not so well laid strategy for victory in the upcoming primary. Sure, "Cy the campaign manager" was the brains (or one of the brains) behind the frame.

Like they say at the DPD.....ONWARD TO VICTORY!!!!!YaHHHH HOOOOOOOOO......