The Sanhedrin asked Pontius Pilot to approve the execution of Jesus, since it lacked the power to order His execution. The man with that power, Pontius Pilot, despite Jesus' innocence, his trepidations and his wife's concern, finally chose to accommodate the Sanhedrin and Jesus chose to die for humanity's sins.

Incredibly (and insidiously), Durham County District Attorney Mike Nifong has been trying to sacrifice the Duke Three on the altar of his political ambition. He can (and should) be stopped, by the court, or by the jury, and by the voters.

When the opportunity is presented, the court should dismiss the case. If the case proceeds to trial, the jury should acquit. And on Election Day the voters of Durham County, North Carolina should reject Mr. Nifong and thereby restore some public confidence in the administration of criminal justice there.

Mr. Nifong's confidence is as misplaced as he is malevolent. Thus, he publicly stated: "You have to understand that obviously the defense attorneys would probably prefer to try the case against somebody who is less experienced than I am, or get somebody who is less committed to the case than I am, and you can certainly understand that. I mean, if I were one of those attorneys, I wouldn't really want to try a case against me either."

The pompous petty-tyrant prosecutor might look for work as a stand-up comic after his career as a representative of the people in the criminal justice system in Durham County, North Carolina ends (the sooner, the better).

A fact-filled article on the Duke case titled "When The Law Is An Ass" appears at /www.dukebasketballreport.com/ourcall/501.html. It includes an understated, but otherwise excellent, section of the contemptible and contemptuous Mr. Nifong:

"Mike Nifong's Role

"Prosecutorial Ethics

"Clearly, the prosecutor's case has some serious weaknesses. But questions of evidence pale compared to questions about ethics, and Nifong's performance has raised some serious ethical concerns.

"Robert Hines, a Duke-trained attorney, points out the following: Rule 3.8(f) of the NC Rules of Professional Conduct deals with the responsibilities of a prosecutor and states the following: The prosecutor in a criminal case shall: (f) except for statements that are necessary to inform the public of the nature and extent of the prosecutor's action and that serve a legitimate law enforcement purpose, refrain from making extrajudicial comments that have a substantial likelihood of heightening public condemnation of the accused and exercise reasonable care to prevent investigators, law enforcement personnel, employees or other persons assisting or associated with the prosecutor in a criminal case from making an extrajudicial statement that the prosecutor would be prohibited from making under this Rule."

Mr. Hines describes himself as "a licensed NC attorney, and a Duke alum and athlete" and pledged to "do [his] best to not let that" affect his legal judgment.

Mr. Hines: "Much has been made of the prosecutor's degree of disclosure to the media.... I can recall at the beginning of this case, Nifong on one particular occasion questioned the players' 'manhood' which I found to be morally reprehensible as an attorney. The public forum held on the NC Central Campus was in my professional opinion, completely inappropriate as it did nothing of any substantive value for the case. Prosecutors have unique jobs in that on the one hand they must be politicians, and on the other they must conduct themselves as honorable attorneys, seeking truth and justice. When the two roles collide is when you typically run into problems, which is precisely why most states (North Carolina included) have special rules that govern prosecutorial conduct."

Mr. Hines explained Rule 3.8(f) of the NC Rules of Professional Conduct as follows:

"[T]he rule is pretty straightforward. The comments to the rule state that the prosecutor should avoid comments which have no legitimate law enforcement purpose and will have a substantial likelihood of increasing public condemnation of the accused. I think it's pretty obvious from what I've read that this hasn't occurred here. (Bear in mind, I live in Washington D.C. and I read this up here)

"I think one can draw a comparison to the way Colon Willoughby conducts himself over in Wake County. He's someone who has been on the job for many years, and has always conducted himself properly. Furthermore, he expects the very same from his staff. The Wake County DA's office has for the most part consistently upheld a level of justice and truth that has served it's residents well. A trial like this should not serve as grounds to expand a political career. Rather, it is the job of the prosecution to aggressively seek the truth, find it, and then fight for justice, whatever that may be.

"In regards to the level of media attention, relevant to this discussion is the NC Professional Conduct Rule pertaining to Trial Publicity-Rule 3.6, which states: (a) A lawyer who is participating or has participated in the investigation or litigation of a matter shall not make an extrajudicial statement that the lawyer knows or reasonably should know will be disseminated by means of public communication and will have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter.

"One thing that the rules clearly illustrate is that the prosecutor is seen as a 'minister of justice' and that his/her job is to seek justice, not to convict. In order to do that, the defendant has to be afforded due process, and there must be sufficient evidence to move forward with the case. This is obviously a matter of debate, but it seems to me that if the prosecutor is approached by defense counsel with exculpatory records that exonerate his/her client (ATM receipts, fast-food receipts that put the accused a different location at the time of the incident) it's incumbent upon the prosecutor to review that evidence and have it weigh into his/her decision to seek an indictment. Not to reject it outright because he either doesn't want it or disagrees with how a defense attorney has been handling the case. It's not about personal pride or opinion, it's about justice.

"The prosecution has different responsibilities from that of the lawyer in private practice-he/she has to make timely disclosures to the defense of evidence known that tends to negate the accused's guilt, that mitigate the offense, or reduce punishment. Perhaps most importantly, the comments to the rules specifically state that a prosecutor should not 'intentionally avoid pursuit of evidence merely because he or she believes it will damage the prosecutor's case or aid the accused.' If we are to believe the claims that Nifong intentionally chose not to take this purported evidence into account, it seems pretty clear that he may have neglected his duty as a prosecutor. Again, it's up for debate whether or not this actually occurred.

"In regards to the DNA evidence-I believe from what I've read that this has been handled properly. As for the recent arrest of the cab driver-there's no question that amounts to intimidation. It's completely inappropriate. Also, conducting warrantless searches of the dorm rooms, if that actually occurred, is not only wrong, but pointless as any evidence collected from an illegal search like that would be inadmissible in a court of law. If the police truly believed that the 'smoking gun' was in one of those rooms, they'd go about it in a proper manner and obtain the evidence after executing a search warrant. It doesn't take much to get one of these-you need about 20 minutes to get it signed and probable cause. Failing to get this warrant, I'm left to wonder if they did it to intimidate, harass, or if they are just completely incompetent."

Mr. Hines pled for justice, not conviction or acquittal: "You guys have done a brilliant job of emphasizing that if indeed these players did something wrong, they should be held accountable in a court of law. No question-that should be the case. The only people that truly know what happened are the ones who were there that night. But in a case of this magnitude, it is incumbent upon the prosecuting attorney to not only seek justice, but advocate strongly to the community that justice be allowed to take its course. That is done by not inflaming the potential jury pool, by not sharing evidence with anyone outside of the defense attorneys or those necessary to conduct justice (yes, that includes the New Black Panther Party-if that's actually true that he met with them, but I find that really hard to believe he would do that), and by taking into account anything that may serve to exculpate the accused. These boys are on trial for their lives, and they should be deemed the rights and procedures any one of us would want if we stood in their shoes, as should the accuser herself. If something did happen that night, the accuser deserves better than what has materialized here; from what I've read her life has been completely shattered. I certainly pray that nothing happened to her that night, as no one deserves to be raped by anyone, much less three men. I'm sad that this case has put the University in such a negative light. If something happened, I'm sad that the accuser's life has been completely destroyed. But I do believe that much of this could have been avoided without the prosecution's tactics. It's crucial to all parties involved that the state follow due course in order to ensure that justice is allocated. That's what makes our system unique from so many others around the world, and that's what makes it right. Clearly, it hasn't happened here, and all involved are paying for it."

The article next quotes Professor Jason Trumpbour, A.B., 1988, A.M., 1991, J.D., 1991, Duke University; Ph.D., 1996, Cambridge University. Following law school, Professor Trumpbour completed a Ph.D. in law at Cambridge University. After a brief stint in private practice, working mainly in the areas of corporate and real estate law, he joined the Maryland Attorney General's Office where he served in the Criminal Appeals Division from 1998 to 2001. He is currently pursuing research interests in criminal law and legal history and teaching several courses in the Legal and Ethical Studies graduate program at the University of Baltimore.

No wonder he is disgusted with Mr. Nifong and willing to say so:

"Without getting into too detailed of a bill of particulars, he has violated, not one but likely, several ethical rules. There is little doubt at this point as to his egregious and systematic violation of the rule against publicly commenting on matters likely to be tried in court. Not only is he tainting the jury pool by trying the case in the media, he is using the opportunity to do so to make arguments to the jury pool that he could not make in court. Calling the defendants 'hooligans,' suggesting that innocent people do not need lawyers and inviting the inference of guilt from the silence of the accused are things that would bring instant and vigorous rebuke if uttered in open court and could potentially be grounds for mistrial or contempt of court.

"The preamble to the rules of ethics used in North Carolina states that Lawyers should 'cultivate knowledge of the law beyond its use for clients, employ that knowledge in reform of the law, and work to strengthen legal education.' Although this is established as an ideal rather than a rule, it, nevertheless, provides another lens through which to [view] these arguments. By making these sorts of arguments and generally acting as a demagogue, Nifong has done the opposite. He has spread misinformation about the law and sought to undermine its most cherished values, such as the equality of all persons before the law, the right to and importance of assistance of counsel and that the accused should be tried in a manner that respects their fundamental rights. Such statements also bring the profession into disrepute."

ABSOLUTELY!

The article continued with specification of additional possible ethics violations by Mr. Nifong::

"Witness Manipulation

"Then there are things which may later prove to be unethical, or worse, but at an absolute minimum, miserably fail the smell test.

"First, there is the deal with Kim Roberts. A convicted embezzler, she was excused from having to pay a 15% bonding fee. Shortly afterward, her testimony changed.

"It's entirely possible, of course, that there is no connection between A and B, but you'll forgive us for being dubious. It's one thing for her to change her story if it goes from being false to true, but another entirely if she changes it from true to false to get a good deal and to make the prosecutor happy.

"It's also entirely possible that the cab driver who provided Reade Seligmann's alibi was picked up by Durham police on old shoplifting charges coincidentally, but he claimed that they asked him if he had anything else to say about the lacrosse case. When he said no, he says they took him in. The suggestion here, of course, is that if he had had 'something else to say,' they wouldn't have taken him in.

"We found out something interesting and unsettling about this: in North Carolina, if you are convicted of a crime, a prosecutor can disqualify your testimony in a trial. So it's not simply about intimidation, but rather a way to shoot down part of Reade Seligmann's alibi. Nice.

"Misstatements, Machinations, and Lies

"Nifong's performance in many respects has been abysmal.

His media comments have been unethical at best and could play a significant role in sending three young men who have the right to be presumed innocent, and who may in fact be innocent, to prison for years.
He called the team 'a bunch of hooligans,' which is prejudicial, to say the least. [My Note: also an anti-Irish slur]
Suggesting that the right to remain silent is indicative of guilt is disgusting.
Suggesting that they wouldn't need lawyers if they were innocent is beneath contempt, and any first-year law student - really, anyone who has seen a half-dozen TV law dramas - would know better.
During a campaign season in a city notorious for politics which split on racial fault lines, he appeared at an event at N.C. Central and took questions on the case. The New Black Panther Party, a profoundly anti-semitic group with the sort of violent rhetoric that recalls the early days of the Nazi's Brownshirts, claims that he met with them and discussed the case, something we haven't seen refuted anywhere, by Nifong or anyone else.
However, Nifong has not only refused to meet with defense attorneys - many of whom he has known for a decade or more - he has refused to even consider possible exculpatory evidence.
Nifong initially suggested that he would build his case around DNA evidence, but when that fell through, he suggested that the suspects might have used condoms - when he knew the alleged victim said during her rape exam that they didn't. Assuming that that is factually correct, Nifong had to know that she said that, and when he said that they may have used condoms, he was, in fact, simply lying.
The comments about a date rape drug were illogical on their face (since she had a pretty distinct recollection of the alleged incident and said she fought back), but since it appears that neither Nifong nor the police requested a toxicology test, he surely knew that comments from 'a source close to the investigation' about the use of a sedative could not be proven. Quite simply, this is another lie, and an attempt to spin the media.
The attempt to interrogate players in their dorm room, without checking with their attorneys, as required by law, and the attempt to search without a warrant, was a shocking abuse of power.
During the investigation, a controversial e-mailcame from the address of a team member which told teammates that he planned to tell authorities that a crime had been committed and that he knew who had done it and would turn them in. The young man denied that he had sent it, and defense attorneys believe that it was an attempted setup by police, who wanted to make the lacrosse team members nervous. The e-mail bore the subject 'sorry guys' in the subject line, and contained this message: 'I am going to go to the police tomorrow to tell them everything that I know.' The player said he was in class at the time the message was sent, although he still could have sent it from any number of wireless devices. But the source of the e-mail should be traceable. The police surely had his password and had the means and opportunity to cause mischief.
The arrest of the cab driver, Moezeldin Almostafa, as we said previously, is a tactic to defuse Seligmann's alibi. But on another level, it is simple witness intimidation: Almostafa is an immigrant, and could face possible deportation over this. On a purely tactical level, it's a logical move, but the two levels of Nifong's ruthlessness on display here are chilling."

The article then addressed the important why question:

"Public Posturing & Electioneering

"What could possibly justify this sort of behavior? As far as we can see, without delving into psychoanalysis, only one thing: the election.

"In Durham, the reality is that a black candidate in the field usually gets no less than 40% of the vote, and with former prosecutorial rival Freda Black in as well, Nifong was in real trouble. The case gave him the opportunity to appeal to black voters, which he did successfully enough to win the election.

"Unfortunately, it came at a significant social cost for Durham, a huge hit for Duke's image, and most critically, at the expense of a number of people who were, even Nifong agrees, entirely innocent, and three young men who may be innocent as well. People's lives have been destroyed over this."

Finally, the article focused on "The Real Threat":

"If the shaky evidence, the witness manipulation and the lies turn out to be merely a way for Nifong to gain elected office at the expense of young men who made stupid decisions and who exposed themselves to considerable risk, he deserves to be not just disbarred but to be indicted, because if that's what's happened here, his behavior is not just stupidly aggressive and unethical, it's criminal. And as horrible a crime as rape is, it is not nearly as dangerous as an instrument of the law who will not himself submit to it.

"And although the tendency for many people, unfortunately, is to say that well, it's just a bunch of rich white boys from Duke and their mommies and daddies will bail them out, why would anyone think an out-of-control prosecutor would limit his abuses to people who can actually fight back?

"Nifong may have used this case to get the black vote in Durham, but anyone who trusts this man not to turn this sort of abuse against the powerless is out of their minds. If you think the pattern we're seen here will be limited to prominent defendants, you need to reconsider, and quickly.

"We're willing to bet that there are a lot of people in jail in Durham who have been there for weeks and months but who lack the resources of the Seligmann's, the Finnerty's, and the Evans's, and who cannot make bail. Moreover, if statistics bear out, many if not most of them will be African-American.

"They may or may not be guilty as charged, but Nifong has shown a willingness to bend the facts - and the law - to suit his needs. If he needs a conviction, the current case suggests he'll do whatever he has to do to get it - and Fox News, CourtTV - they'll be nowhere in sight.

"And while false allegations of crimes will always be with us, we're also concerned that the inevitable reaction to the overtly public trial-by-media employed by lawyers on both sides of the case may discourage rape victims from coming forward in the future, and that's a devastating side effect of what's happening here.

"However, the public nature of the legal argument was started by Nifong. Once he started down that path, the defense attorneys were allowed (and indeed obliged) to answer in kind. Had he behaved properly, the defense could not have responded in the way that they have.

"Perhaps the whole situation is summed up best by Kenneth Callahan, a judge from Ohio who wrote a guest column recently for the Durham Herald-Sun (the article unfortunately is not online). He emphasizes the following:

'A moral human being does not create racial divisions for personal gain.'
'No candidate for office should make an ongoing investigation part of his campaign speeches.'
Quoting from the American Bar Association Standards for Criminal Justice: 'The responsibility of a public prosecutor differs from that of the usual advocate; his duty is to seek justice, not merely convict.'

"Mike Nifong is a danger to anyone who finds themselves in the criminal justice system in Durham County. He has shown a disregard for the law and for his ethical responsibilities, and in fact has become an enemy of justice rather than an enforcer of justice.

"Someone else can handle the case and ensure a fair and honest outcome, something which everyone wants. Let them.

"As for Nifong, in our opinion, his behavior has been egregious and should be investigated by the state bar association and by the Justice Department, and the sooner the better."

May it be made so!

Friends of Duke University just released an open letter to Duke University's President and Board of Trustees offering a helpful suggestion for restoring some of the public respect Duke lost as a result of its suspension of the indicted players and embrace of a presumption of guilt instead of a presumption of innocence.

The letter stated in pertinent part:

"We address you as members of the Duke family, brokenhearted at the unfair treatment and portrayal of the Men’s Lacrosse Team—and by Duke University’s acquiescence in this treatment. We believe Duke cowered in the face of media pressure engineered by the unethical and possibly illegal conduct of the Durham County District Attorney’s Office. When these allegations first made national headlines, the lacrosse team captains told you and the Duke community that they were 'totally and transparently false.' All publicly released case documents confirm this stance. And according to reports from reliable members of the media, including Dan Abrams ’88, all evidence in the prosecution’s discovery file supports the team’s unwavering position: no sexual assault occurred. Yet Duke has remained hesitant in its support. In the process, it has sacrificed its own students and values.

"We believe that Duke needs to repair the damage caused by the actions described above. Accordingly, we respectfully ask that you consider the recommendations below as official acts of the University.

"Speak up for your students

"We are sure that everyone, at least at Duke, can agree that the accused Duke students deserve justice through a fair and regular process. Right now, they are not getting it. Not by a longshot.

"We believe that the Duke administration has a positive obligation to ensure that Duke students are not singled out for unjust treatment by local authorities. Would a parent stand by while their child was abused? Not even say anything? We think not. Yet, that is precisely what Duke has done in this case.

"We fear that the administration’s passive response to the district attorney’s behavior will lead future students to think twice before attending Duke. Therefore, we urge a public statement that Duke expects fair administration of criminal justice. All in Durham should be appalled by the following conduct by District Attorney Mike Nifong:

• Made Prejudicial and False Extrajudicial Comments. Rules 3.6 and 3.8(f) of the North Carolina Rules of Professional Conduct prohibit attorneys from making extrajudicial statements likely to prejudice a pending case. But Mr. Nifong: (1) materially misrepresented the facts by referring to evidence that did not exist; (2) called the accused 'hooligans' and attested to their guilt; and (3) invited the inference of guilt from the exercise of the their civil right to representation by counsel. Each of these arguments, if made in court, would be sanctionable and grounds for mistrial.

• Denial of due process through a suggestive identification procedure. In order to generate names for his indictments, Mr. Nifong ordered an identification consisting of only photos of lacrosse players, violating guidelines set down by North Carolina’s Actual Innocence Commission. In further violation of these standards, the alleged victim was told that the photographs were of people who attended the party. As one noted criminal law scholar has pointed out, this procedure 'strongly suggests that the purpose of the identification process was to give the alleged victim an opportunity to pick three members of the lacrosse team who could be charged. Any three students would do; there could be no wrong choice.'

• Improper contact with persons represented by counsel. Mr. Nifong has been quick to claim credit for conducting the police investigation. On April 14, police officers went into Duke dormitories to question Duke students who were known to be represented by counsel. This action violated Rule 4.2 of the North Carolina Rules of Professional Conduct.

• Refusal to examine exculpatory evidence. Rule 3.8 of the North Carolina Rules of Professional Conduct forbids prosecutors from intentionally avoiding 'pursuit of evidence merely because he or she believes it will damage the prosecutor’s case or aid the accused.' On multiple occasions, defense attorneys offered to provide Mr. Nifong with exculpatory evidence strongly suggesting innocence. Mr. Nifong refused to accept or even look at this evidence.

"Nicholas Kristof recently observed, 'As more facts come out about the Duke lacrosse scandal, it should prompt some deep reflection.' The New York Times columnist compared Nifong’s behavior to the Scottsboro Boys prosecution, an event commonly held up as the standard of a prejudice-based miscarriage of justice.

"While the university can express no opinion about the ultimate outcome of pending legal matters, we urge Duke to use all its influence and moral suasion to ensure that these three Duke students receive justice through a fair process. We also call upon Duke to formally demand that Mr. Nifong immediately correct, to the extent now possible, the grave errors that he has committed to date."

For the sake of Duke as an institution, the Duke Administration needs to own up to its failings instead of remaining paralyzed by pathetic political correctness concerns.

The Scottsboro "boys" were black; the Duke Three are white. All victims, not villains. Persecution of three young white men from wealthy families does not help the long dead Scottsboro young. It only shows that now white Yankee males from wealthy families too can be persecuted in Durham, North Carolina by a prosecutor who is too much political and too little professional. That's NOT progress!

Michael J. Gaynor
95 Darrow Lane
Greenlawn, New York 11740-2803
(631) 757-9452 (tel)
(631) 754-3437 (fax)
GaynorMike@aol.com