Why Nifong Knew About The Case Before Mar. 23

(First posted 6/7/09)

ERROR ALERT: As first published this post incorrectly stated attorney Jim Cooney "is now part of the legal team defending Duke in a suit brought by unindicted players and family members."

The post has now been corrected.

I apologize for my error and thank the two readers who promptly called it to my attention. I'll also thank them on this post's thread for their "editor's" work.

John
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Readers Note: A few days ago sceptical, an astute Duke lacrosse case commenter who blogs at Liestoppers Meeting, asked me to explain something.

It's why I'm certain Mike Nifong did not first learn about the case on Mar. 23, 2006 as the Raleigh N&O reported in Apr. 2007 and as Nifong himself testified in June, 2007 at the State Bar trial which led to his disbarment; but instead learned about Crystal Mangum's false charges the same day she made them: Mar. 14, 2006.

I'm responding to sceptical in two posts.

Today's post is meant to leave sceptical and others reading it in no doubt that Nifong knew about the case well before Mar. 23.

A second post explains why I'm certain Nifong learned of the case on Mar. 14.

The first thing you'll read following this note is a post I published on Jan. 11, 2008: Nifong's Copier "Discovery" Is A False Story.

Following that, I make some further comments.

I'll be interested in your feedback.

John
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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. […]

END OF APR. 27, 2007 POST EXTRACT
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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 afterward; 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, he 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

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Concluding comments made on June 7, 2009:

Folks,

The sentence "Did they say to each other anything about police officers’ and the second dancer’s statements that the accuser’s story was a 'crock?'" is awkward as it could reasonably be construed to mean I was saying both police officers and the second dancer said Mangum's story was a "crock."

The second dancer did say the story was a "crock;" but, while a number of officers, most notably DPD Sgt. (now Lt.) John Shelton, didn't believe Mangum's charges, I know of none who called them a "crock."

On the comment thread of the Jan. 11, 2006 post kbp, a fine Duke lacrosse commenter, notes correctly Nifong is the signatory on the request to DUMC for release of Mangum's medical records. That request was made before Mar. 23.

I did not mention the records release form in Nifong's Copier "Discovery" Is A False Story or in any other post in which I've challenged the veracity of Neff & Nifong's copier "discovery" stories because it's very possible Nifong did not actually sign the request form

In many offices what are viewed as routine request forms are signed by others on behalf of the person in whose name the request is made and who is not available at the time of the request.

Also, some officials who signatures are required on certain form requests and other documents sign blank copies in anticipation of the documents needing to be used in their absence.

Mind you, I'm not say Nifong didn't actually sign the request for Mangum's medical records. I'm just not sure he did.

But I am sure he knew about the Duke lacrosse case well before Mar. 23, 2006; and I hope you're sure too.

Thanks for reading.

Look for the second post in a day or two.

John