Concerning disbarred former Durham DA Mike Nifong's claim of absolute immunity for his actions in connection with the attemped frame-up of three transparently innocent Duke students, KC Johnson in "Responding to Nifong" identifies areas which he believes its highly improbable the court will grant Nifong's absolute immunity claim. One is:
[B]etween March 27, 2006, when he began his pre-primary publicity crusade, and mid-April 2006, Nifong served as the de facto public spokesperson for the Durham Police Department, regularly briefing the local, state, and national media on the progress of the “investigation” and the state of the “evidence” that the Police “investigation” he supervised had allegedly developed.I want to say a few things about each area KC identifies.
But in this post I'll focus only on what KC calls the time "Nifong served as the de facto public spokesperson for the Durham Police Department."
KC says the Nifong's public spokesperson activity began on March 27, 2006.
That's true. But there's credible evidence Nifong served as an anonymous source for the Raleigh News & Observer before March 27 and, according to N&O columnist Ruth Sheehan, made false and inflammatory statements to the N&O regarding the lacrosse players.
Here's some of what I said about that in Nifong as an anonymous N&O source (Post 2) (Aug. 1, 2007):
Some JinC readers have questioned my report that the Raleigh News & Observer used then DA Mike Nifong as an anonymous news source last March when it ran a series of false and racially inflammatory stories trashing and publicly framing 46 white Duke students who played on the school’s Men’s lacrosse team. ( “ Nifong an N&O anonymous source (Post 1)” )
The readers have noted a source for my report, N&O news columnist Ruth Sheehan, has a less than outstanding reputation for reliability.
I won’t dispute that.
But there’s a great deal more than just Sheehan’s statements that supports my report.
I’d like to tell you about it.
I began tracking the story of Nifong as an anonymous N&O news source last March when the N&O first reported Crystal Mangum’s lies and the false claims the players were not cooperating with police.
I heard people say the N&O was using Nifong as an anonymous source but I didn’t feel I had enough credible evidence on which to base a report.
I did repeatedly point out last Spring that although media was saying they were only reporting what Nifong was telling them, in fact what he began telling them publicly on March 27 was exactly what the N&O had been telling readers and the rest of media since the N&O “broke” the lacrosse story on March 24.
But I didn’t say Nifong was an N&O anonymous source for some of the N&O’s March 24 through 27 stories framing the players even when Sheehan said in a June 19, 2006 column he was the source for her March 27 column attacking the players:
“Say all you want about the media's rush to judgment. But the truth is we report on allegations and charges out of district attorneys' offices every single day. And when a DA, especially one with Nifong's reputation for being a quiet, behind-the-scenes guy, comes out not only saying that a rape occurred, but that it was a brutal gang rape, in which the woman was strangled and beaten, you had to figure he had incontrovertible evidence.”What I did then was just remind readers’ Nifong’s public statements followed Sheehan’s column. So how could she use what he said as an excuse? I didn’t add: “unless Sheehan used Nifong as an anonymous source."
I didn’t add that because I was concerned that when confronted with the obvious implication of what she was saying, Sheehan might back off and say something about being under deadline and a little confused about time sequences. She might have said what she really meant was Nifong’s statements had influenced her when she wrote her April 3rd column about the lacrosse team and called for its coach, Mike Pressler, to be fired.
But my hesitation about using Sheehan as a source confirming Nifong’s anonymous involvement in the N&O’s framing of the players disappeared with the publication of Don Yeager’s book, It’s Not About the Truth, which he wrote in collaboration with Pressler.
Yeager quotes Sheehan repeatedly on the use she and the N&O made of Nifong as an anonymous source at least by March 26, if not before.
Yeager tells us Sheehan said ” …I called in [to the N&O on March 26] and they told me that there was another story with Nifong talking about how there was this wall of silence. That’s when I decided on that Sunday to write my first column about the case.” (p. 154)
Yeager quotes other statements Sheehan made the leave no doubt Nifong was an N&O source. You can read some of them in this post.
Yeager also describes Sheehan on March 26 preparing her next day’s column: “As she wrote, Sheehan made clear that in her mind the stories bubbling up from Nifong’s office and the Durham Police Department were true.” (p.155)
There are at least three reasons why I have no doubt Yeager quoted Sheehan accurately and she can’t disown what he says she told him:
1) - Yeager, a veteran reporter, must certainly have taped what Sheehan said, retained those tapes and been very careful to quote accurately from them;
2) - It’s now common practice for publishing houses to require that interviews of the sensitivity the one(s) Yeager conducted with Sheehan are taped so it/they can be reviewed by the publishers’ attorneys for liability issues.
I believe Yeager, Pressler and their publisher, Simon & Schuster, would’ve been very careful to quote Sheehan accurately in any case; but they were no doubt particularly careful because at the time the book was being prepared for publication Nifong was the subject of State Bar ethics charges; three lacrosse players were still under indictment; and Pressler’s suit against Duke was still active.
3) - Sheehan has not disputed anything Yeager attributes to her.
So as reported in a previous post and now here we have Sheehan on the record and not disputing the record. We have her saying that by March 26 other journalists at the N&O reported to her what Nifong was telling them; that what her journalist colleagues said Nifong told them was of sufficient detail and emotional power to convince her to forgo a column she’d already written and instead write a column based on what she was told Nifong said.
To all of that we can add the fact that in the three months since Yeager’s book's been released, no one at the N&O has disputed anything in his account of what Sheehan says she was told when she phoned the N&O on March 26.
The N&O own May 4 story reporting the book's publication doesn’t dispute anything attributed to Sheehan. It doesn’t even mention her although Yeager not only quotes her as using Nifong as a source but on many other matters related to the paper’s Duke lacrosse coverage and bloggers.
When I emailed the story’s reporter, Jim Nesbitt, asking him specifically about what Yeager said about Sheehan’s March 27 column, Nesbitt never responded nor did he respond to phone messages.
I hope, folks, you all now see why after 16 months I felt I had enough evidence to go with my report and why I’m standing by it.
I don’t have any doubt that no later than March 26, 2006, and perhaps earlier, the Raleigh News & Observer was using Nifong as an anonymous news source.
That no doubt helps explain why so much of its Duke lacrosse coverage was false and racially inflammatory.
Folks, if, as seems very likely, Nifong is deposed , Plaintiffs' attorneys have very strong reasons to ask him about his actions in connection with the slandering of the lacrosse players and other parts of the frame-up attempt which took place between March 24 and 27.
If, as Sheehan maintains, and as the N&O has never denied, Nifong served by at least March 26 as an anonymous source for false statements about the players to the N&O, it is hard for this non-lawyer to see how such conduct could fall under an absolute immunity protection.
On the contrary, I think it will significantly strengthen the players' claims against Nifong and any others from the DA's office or DPD who engaged in such slanderous activities.