Bad Faith

In his concurring opinion in Younger v. Harris, 471 U.S. 37 (1971), Mr. Justice Stewart noted that

The questions the Court decides today are important ones. Perhaps as important, however, is a recognition of the areas into which today's holdings do not necessarily extend. In all of these cases, the Court deals only with the proper policy to be followed by a federal court when asked to intervene by injunction or declaratory judgment in a criminal prosecution which is contemporaneously pending in a state court...

The Court confines itself to deciding the policy considerations that in our federal system must prevail when federal courts are asked to interfere with pending state prosecutions. Within this area, we hold that a federal court must not, save in exceptional and extremely limited circumstances, intervene by way of either injunction or declaration in an existing state criminal prosecution. Such circumstances exist only when there is a threat of irreparable injury "both great and immediate." A threat of this nature might be shown if the state criminal statute in question were patently and flagrantly unconstitutional on its face (citation omitted), or if there has been bad faith and harassment - official lawlessness - in a statute's enforcement (citation omitted). In such circumstances the reasons of policy for deferring to state adjudication are outweighed by the injury flowing from the very bringing of the state proceedings, by the perversion of the very process that is supposed to provide vindication, and by the need for speedy and effective action to protect federal rights.

The Court's restatement of long embraced deference to a sovereign state's freedom to prosecute criminal matters unencumbered by federal meddling (save in those exceptional circumstances summarized by Justice Stewart) came to be colloquially known as "Younger Abstention."

On Monday, we learned of North Carolina Congressman Walter Jones' formal written request for federal investigation of Mike Nifong's conduct in furtherance of the Duke non-rape case.

Yesterday, counsel for Reade Seligmann, Collin Finnerty and David Evans jointly filed a stunning motion detailing how DNA Security, Inc. (DNASI), the forensics laboratory retained by Nifong to conduct further testing upon DNA samples after SBI testing turned up nothing inculpatory against any player, failed to disclose its findings of what should have been hoax-ending exculpatory evidence in its "final report" to Nifong, dated May 12, 2006. Particularly, the report, um, failed to mention that

DNA Security identified DNA from multiple males in the accuser's anus, in her pubic region and on her panties. Enough of that DNA existed for DNA Security to conclude that none of it matched the defendants, their teammates on the 2006 Duke University Men's Lacrosse team, or anyone else who submitted a DNA sample in the investigation.

Further, when DNASI, despite aggressive protest, was compelled by court Order to submit its entire file to the defense in October, counsel discovered that it had failed to follow its own Reporting and Documentation policies. The motion makes clear how DNASI failed, in numerous instances, to even describe particular items of evidence examined, or to set forth the results of each DNA test performed. In fact, "despite performing DNA tests on over a dozen evidentiary items, DNA Security only reported its analysis of three of those items."

On the heels of these last two most interesting days, then, let us take a fong look back at bad faith, harrassment, official lawlessness, perversion of process, the need for speedy and effective action to protect federal rights, and the reasons why Younger Abstention is inapplicable to the case at bar, shall we?

Spring, 2006: Erstwhile Traffic Court Dictator-For-Life and Dog Control Officer Nifong is in the fight of his political life. He badly trails Freda Black in the Democratic primary race for District Attorney. This will not do. Nifong can't stand Freda Black. Considering that he fired her one day after being appointed interim D.A., in 2005, the feeling is mutual. If he loses to his former officemate, he's out of a job. What to do? What to do? Why, loan his sagging campaign THIRTY THOUSAND ($30,000.00) DOLLARS, of course!

March 14, 2006: Crystal Gail Mangum got an idea. An awful idea! CRYSTAL GAIL MANGUM GOT A WONDERFUL, AWFUL IDEA!

March 16th: Mangum is shown a first photo array, as police attempt to have her identify the perpetrators of her awful idea. "This is harder than I thought", she complains, failing to identify anyone.

March 17th: Mangum, allegedly "too traumatized" to discuss the case with Nifong nearly a month later, on April 11, is back at the Platinum Club, stripping, pole dancing, and giving "clients" the private, "VIP" treatment three days after allegedly having just endured a brutal gang rape. A former co-worker alleges that she then boasted that she was going to "get paid by the white boys".

March 20th: The other stripper with Mangum at the lacrosse party tells Investigator Benjamin Himan that she was in Mangum's company for all but five minutes at the time in question, and that Mangum's awful idea is a "crock of shit."

March 21st: Mangum is shown a second photo array. She, again, cannot identify anyone as an assailant.

March 23d: Despite, or because of, the foregoing, Durham County's "Minister of Justice," Mike Nifong, had an awful idea of his own, and personally commandeered the investigation. On this day, his chief assistant prosecutor, David Saacks, Esq., and Himan, submitted perjurious representations to Nifong's ol' buddy Ron Stephens, in their joint Affidavit in Support of the D.A.'s request for an Order that all white members of the 2006 Duke Men's Lacrosse team submit to photography and cheek swabbings for the collection of DNA. Ol' buddy did not disappoint. Complainant can't identify her assailants? Fuggedaboudit. Modern science would now do that for her, or so the Minister of Justice shortly later promised.

March 24th: The Raleigh News & Observer "breaks" the "victim's" story to the Triangle community, and the nation.

March 24th: Nifong formally assumes the role of lead investigator of Crystal Gail Mangum's awful idea, directing Sgt. Gottlieb and Officer Himan to report directly to him.

March 26th: Mangum is videotaped pole dancing at the Platinum Club. Good old Precious.

March 27th: The 2006 "Minister of Justice" tour begins, with Nifong confidently awaiting SBI DNA test results while slandering the entire white membership of the 2006 Duke Men's Lacrosse team for an adoring camera.

The district attorney's office said team members deny the accusations, but admit there was underage drinking at the party. Otherwise, they are not cooperating with authorities.

Nifong, who said Monday that he himself will prosecute the case, said authorities may apply for more search warrants in the case and that more charges for aiding and abetting may be possible against partygoers.

"There's a good chance if someone had spoken up and said, 'You can't do this,' it might not have happened," Nifong said.

March 28th: The tour revs up; Nifong continues to unequivocally assert that forthcoming DNA results will solve the case.

March 28th: SBI Serology Agent, Rachel Winn, determined that the oral, vaginal, rectal and panties swabs and smears taken of the accuser as part of the initial Rape Kit did not show evidence of semen, blood or saliva. Accordingly, if curiously, she did not forward these items to the SBI DNA Section for further testing.

March 29th, et. seq.: Nifong, oh-so-coincidentally, commenced to minimize the importance of DNA testing and results, as the Tour cranked into over-drive. During this phase of the tour, Nifong outrageously and repeatedly violated Rule 3.8(f) of the state Rules of Professional Conduct, which prohibit prosecutors "from making extrajudicial comments that have a substantial likelihood of heightening public condemnation of the accused."

March 31st: Nifong ordered Gottlieb and Himan to conduct a third photo identification session with Mangum, this time showing her only photographs of the white members of the 2006 Duke Lacrosse team. This brainstorm assured that any individual(s) Mangum pointed to would be members of the suspect pool. That nice Mr. Nifong set up for her "a multiple choice test with no wrong answers." This Nifongian procedure violated all state, city and Police Department norms existing to insure that a suspect is accorded procedural justice, in flagrant violation of Professional Conduct Rule 3.8, comment 1.

April 4th: Mangum participates in the rigged photo lineup. She identifies four men as her attackers, including Reade Seligmann and David Evans, both of whom she did not recognize in the photo arrays of March 16 and 21, and Collin Finnerty, whose physical characteristics did not remotely comport with her own descriptions of her assailants to Himan on March 16th.

April 4th: After meeting with Nifong to report the results of the rigged photo lineup, Investigator Michelle Soucie contacted Dr. Brian Meehan of DNASI to see what his lab might do and charge for additional testing of evidentiary items in the case. Per Soucie's notes, Meehan went through the type of testing available and offered to "possibly adjust prices because they would really like to be involved in the case."

The Democratic primary was less than a month away.

April 6th: Mangum's "driver," Jarriel L. Johnson, gives a lengthy written statement to DPD, memorializing in comic detail her rather busy 'appointment schedule' over the three days preceeding the lacrosse team party.

April 7th: DNASI completed testing DNA extractions from Mangum's panties' stains, and rectal and vaginal swabs. Negative for the presence of DNA from any lacrosse player.

April 10th: Nifong, Gottlieb and Himan, drive to DNASI and discuss testing with Meehan. Leaving that meeting, then, they had to know of the negative results of testing completed on the 7th. Unless they didn't.

April 11th: Nifong meets with Mangum for, he says, the only time. But they didn't discuss two rounds of negative DNA testing. In fact, he says, they didn't discuss the case at all, what with Mangum still being so traumatized, and all. They talked about her kids. Gottlieb, Nifong says, is mistaken in his belief that, at 2:00 p.m. on April 11, "the victim and District Attorney Nifong met with one another and discussed the case." Nifong, Nifong says, is mistaken in his belief that he did speak with Mangum about the case on April 11th.

April 13th: DNASI completed testing DNA extractions of Mangum's rape kit pubic hair comb. Negative for the presence of DNA from any lacrosse player.

April 13th: Kirk Osborn attempts to meet with Nifong to proffer factual proof that his client, Reade Seligmann, could not possibly have participated in the crimes alleged. Nifong tersely rebukes Osborn, by proxy:

"I’ve known the guy for 25 years," Mr. Osborn said in mid-April. "I went over and thought surely he’d listen to me on it. And he sent some messenger out and said, 'I saw you on the TV saying your client was absolutely innocent, so what do we have to talk about?' He wouldn’t even see me himself."

April 17th: Seligmann and Finnerty are indicted. Nifong elected not to arrest the suspects identified by Mangum at the rigged April 4th photo lineup. Had he done so, the defendants would have been entitled to a probable cause hearing, to be conducted within fifteen business days of their arraignments, or first appearances, before the bench. At such a hearing, the defendants would have had the opportunity to examine the state's "evidence," cross-examine its witnesses, and present exculpatory evidence. Nifong wasn't interested in such petty matters. The Democratic primary was little more than two weeks away. A probable cause hearing scheduled following arrests made on any day after the 4th would have, in all likelihood, been conducted after the primary. Nifong could not have that, inasmuch as his slim hopes of defeating Freda Black rested exclusively within his ability to charge three white Duke lacrosse players with the heinous crimes alleged before the primary, so as to satiate the bloodlust of a majority of Durham's black voters. Thus, despite Mangum having "identified" four extremely dangerous, sexually depraved thugs on April 4th, Nifong let them walk the proverbial streets of Durham for two more weeks before presenting charges against them to a grand jury.

April 20 or 21: Nifong, Gottlieb and Himan, drive to DNASI and discuss testing with Meehan. Leaving that meeting, then, they had to know of the negative results of testing completed on the 13th. Unless they didn't.

May 12th: Meehan submits DNASI's "final report" to Nifong. It is woefully deficient, as set forth above and at length within counsels' December 13th motion.

May 15th: David Evans is indicted.

It is appropriate here to note that, following Mangum's initial accusations of March 14th, Chief Investigator Nifong never sought to have the "second dancer," Kim Roberts, i.e., the universally described lucid one of the pair on the night in question, look at any photo arrays. He never sought to have her interviewed regarding Mangum's statement implicating her in the assaults and robbery alleged to have been perpetrated. He never sought to have Mangum's "other driver," Brian Taylor, interviewed. He refused the players' offer to submit to lie detector testing. He refused to view the results of lie detector tests all three defendants, nonetheless, submitted to unilaterally.

Once faced with the realities of DNA testing, he hinted that Mangum's imaginary attackers might have worn condoms, despite Mangum having expressly stated 1) that they did not, and; 2) that at least two fiends had ejaculated in her mouth and rectum. He floated the rumor that Mangum may have been given a date rape drug, when chemical testing had confirmed that no such thing had occurred.

Throughout the summer and into the fall, Chief Investigator Nifong parcelled out discovery like breadcrumbs, railed against such "frivolous" defense requests as those for Mangum's cell phone records and the complete DNASI file contents, wasted the court's time with meritless motion practice, was at the helm when material, relevant audiotaped evidence was destroyed despite prior Order that it be preserved, and otherwise generally acted like the narcissistic sociopath that he surely is.

In the face of the facts disclosed in yesterday's defense motion, it is now crystal clear that Nifong intentionally and willfully perpetuated an unjust persecution largely of his own creation, immeasurably damaged untold numbers of lives, wickedly stoked the fires of racial mistrust and divisions for selfish aggrandizement, obstructed the administration of justice, most likely in affirmative conspiracy with DNASI's Dr. Meehan, all to the great and immediate harm of the defendants, with no concern whatsoever for their constitutional due process rights as citizens of this country. His only concerns have been 1) winning election to serve for six more years as Durham County's "Minister of Justice," and; 2) self-preservation, or as lengthy a delay of the coming disembowelment as he might secure. The man is pure evil. What ya gonna do, Oz? What ya gonna do, Gov? What ya gonna do, Alberto?

Kill it. Kill it now.