Posted by Stuart Taylor (guest-blogging): Nifong: The Banality of Evil http://volokh.com/archives/archive_2007_09_16-2007_09_22.shtml#1190037489
After learning of Crystal Mangum�s far-from-credible rape allegation, Mike Nifong moved on Friday, March 24, 2006 to take direct command of the eight-days-old police investigation, in a gross departure from standard procedures that avoided oversight of the investigation by any police official above the rank of sergeant. Meanwhile, the police and local papers dramatized the case as an unquestioned example of privileged white athletes victimizing a poor black woman. Then Nifong met on March 27 with the two main police investigators in the case. They told him that a sexual-assault nurse in training at the Duke hospital thought Mangum had been raped. Perhaps Nifong believed the nurse-trainee, even though the hospital records showed no physical evidence of rape; certainly it was politically convenient to believe her. But Nifong also had access to the reports of Mangum�s wildly inconsistent stories. And he learned from the cops that Mangum had been unable to identify a single attacker in two photo lineups and that the second dancer, Kim Roberts, had called Mangum�s allegations a �crock.� Nifong�s response: �You know, we�re f***ed.� Less than an hour later, ignoring ethics rules forbidding prosecutors from publicly seeking to �heighten condemnation of the accused,� the D.A. began an unprecedented, week-long media campaign. He declared with certitude in dozens of interviews that white Duke lacrosse players had raped and brutalized a black woman while pelting her with racial epithets. Nifong compared the alleged crime to a cross-burning, and to a quadruple homicide. He falsely claimed that the players had refused to cooperate with police. Before long he had whipped up African-Americans and others in Durham and at Duke into such a frenzy of rage at the lacrosse players that it would have consumed Nifong himself had he failed to produce rape indictments before the May 2 primary election. Meanwhile, evidence of innocence came pouring into the DA�s office. But there was no turning back for Nifong. So when he learned privately that DNA tests of all 46 white lacrosse players were negative, he publicly abandoned his own office�s assurance that the DNA would identify the guilty and exonerate the innocent. Instead, Nifong started saying that DNA doesn�t prove anything, and that the attackers might have used condoms. Never mind that Mangum had repeatedly asserted that her �attackers� had not used condoms and that one, two, or three of them had ejaculated. Nifong also spurned several offers by defense lawyers to show him detailed alibi and other evidence that their clients were innocent, including an electronic timeline established by time-stamped photos and cell phone records. The DA avoided ever personally interviewing the ever-changing Mangum about the facts. And he looked the other way as other evidence of innocence accumulated. This was a classic case of willful blindness to the facts. It was as though Nifong sensed that the rape charge was probably a fraud -- how could he not? -- but wanted to avoid confronting clear proof because he was determined to prosecute no matter what the evidence. Accordingly, Nifong focused on manufacturing evidence of guilt. He rigged up a third photo-ID process that violated all the rules designed to insure reliability. The police showed Mangum photos only of lacrosse players who had attended the party. They told her this, stoo. In what amounted to a multiple choice with no wrong answers, Mangum �identified� four lacrosse players as possible attackers. Nifong obtained indictments against three of them. Nifong also sent the DNA evidence to a private lab for more sensitive, �Y-STR� testing. The results were even more conclusive proof of innocence: In three meetings during April and May of 2006, lab director Brian Meehan told Nifong and his police investigators that while the DNA in the rape kit did not match any lacrosse player, the lab did find the DNA of multiple other, unidentified males. Mangum had told police she had no sexual contact with anyone for a week before the supposed rape. Rather than drop the charges, Nifong and Meehan agreed that the paid expert would hide this powerful evidence of innocence by omitting it from his report. And in the summer and fall of 2006, Nifong lied to two judges when asked whether Meehan�s tests contained anything beyond what his report had revealed. What finally blew Nifong�s case out of the water was a riveting, December 15 cross-examination in which defense lawyers forced Meehan to admit all the elements of this conspiracy. Nifong�s unethical media campaign, his willful blindness to the facts, his rigged photo lineup, his lies to the public and the court, and his concealment of proof of innocence are a rare study in how to frame innocent defendants by using procedural violations to construct a phony case out of whole cloth. The DA also had accomplices who joined or assisted in his crimes, including some police officers and others, plus enablers who helped him get away with his flagrant misconduct for so long. Subsequent posts will examine some of the enablers. As for Nifong, North Carolina Attorney General Roy Cooper called him a �rogue prosecutor� in April, while declaring the three wrongly indicted defendants �innocent.� The DA lost his law license in a bar disciplinary hearing in June. He was convicted of criminal contempt and jailed for a day this month. And he still faces possible investigation for crimes that could bring serious prison time, including obstruction of justice and violating the lacrosse players� civil rights. (KC Johnson co-authored this post.)
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