Friday, January 12, 2007

We're Watching You

NCAG Roy Cooper showed up today to confirm that, upon Defendant Nifong's recusal request, his office has agreed to take over the prosecution of the Duke Frame cases. He said all the right things, about the need to focus not on how the cases got to his office, but where they will ultimately go from here. He spoke of the need to conduct a full, fair, and thorough investigation of the Durham County D.A.'s case files, conduct interviews of Crystal Mangum, other witnesses, and investigators [Hi, Mark! Hi, Linwood! Hi, Ben!]. He pledged that the actions of his office will be spurred exclusively by what the facts show to be the truth, and that "blinders" will be worn to shield the investigation from taint by "external pressures" [Hi Whiners! Hi Blog Hooligans!]. He played Solomon [Did you watch, Mikey?], noting that the transfer does not necessarily mean, either, that there will be a trial or that the cases will be dismissed. Sound good so far?

Unfortunately, he went on to note that the matters have been assigned to the Special Prosecutions Section of his office, where two lawyers, Jim Coman and Mary Winstead, will have primary case management authority. Coman and Winstead. Hoo boy. Cooper's vesting chief prosecutorial authority in these two is potentially a bad thing. A VEH-ry bad thing.

To understand why Coman's appointment is most troubling, one must have a working knowledge of the case of Alan Gell, a man wrongly accused, tried, convicted and sentenced to die for the 1995 murder of Allen Ray Jenkins. Gell spent ten years in jail for the crime, much of it on death row. The only problem? He didn't do it.

Jenkins' rotting corpse was found on April 14, 1995. A troubled teenage girl, Crystal Annette Morris, who ultimately pled guilty to second degree murder for her role in the killing, claimed that she was present when Gell shot Jenkins to death on April 3, 1995. April 3d was the only date on which Gell could have committed the murder, since he was proven to have been out of state on April 4th and 5th, and incarcerated in a North Carolina jail on unrelated charges from April 6 through the 14th, the date on which Jenkins' dead body was found.

Morris' version of Gell's "involvement" changed eight times between her first police interview, on the day after Jenkins' body was discovered, and her testimony at trial in 1998. One such version was captured in a tape recorded telephone conversation with her boyfriend, in which she intimated both her involvement in Jenkins' killing and the plan to frame Alan Gell. Morris was corroborated by her best friend, Shanna Hall, who also ultimately pled guilty to second degree murder for her role in the crime.

Additionally, seventeen people, including the decedent's brother, neighbors, friends and town acquaintances, had given law enforcement personnel statements setting forth their recollections of having seen Jenkins alive between April 7th and 10th (while Gell was incarerated).

How could Gell have been convicted, you ask?

After SBI and Aulander police authority had decided to deem April 3d the date of the murder, based solely on the stories of Crystal Morris and Shanna Hall, the two lead investigtors re-interviewed those acquaintances who had claimed to have seen Jenkins' alive as much as a week later. As Joe Neff reported it,

Still, (SBI Agent) Ransome and (Aulander Police Chief) Godwin had a problem. In each of Crystal's versions, the murder occurred April 3. But the SBI and the district attorney files had statements from 17 people saying they had seen Jenkins alive after April 3.

The next day, July 28, Godwin and Ransome set out to clear up the discrepancies. They went to Ahoskie and re-interviewed four witnesses who had seen Jenkins buying gas, fish and a meal on April 10.

Ransome and Godwin informed each witness that Jenkins had died April 3. Each one then gave a new statement to the effect that they were not sure of the actual date, just that it was in early April.

Armed with the revised statements, Godwin and Ransome returned to Aulander to look for two key witnesses -- Jenkins' next-door neighbors, Bobby and Mary Hunt.

The two officers found Mary Hunt at her job at Farm and Home Gas Co. at the corner of Main and Commerce.

Ransome later dictated a report from this interview: "Hunt was re-interviewed because it was learned that Allen Ray Jenkins had been shot and killed on Monday, April 3, 1995. Hunt stated that she last saw Jenkins on Saturday morning, April 1, 1995."

Mary Hunt did not learn the contents of this report until a reporter showed her a copy in October 2002. The Hunts are clear on their story: She last saw Jenkins on Saturday, April 8, six days before his body was found. She was sitting in her office, waiting for the clock hands to hit noon so she could go to lunch, when she saw him stop at the traffic light outside her window.

"Oh, no," she thought. "He's getting ready for another party tonight."

The next day, April 9, Bobby Hunt saw Jenkins cooking fish in the back yard with some friends. Bobby Hunt went to bed early, as he did every Sunday. He needed to be at work at the Food Lion in Williamston at 5 a.m.

A grandson and his friend were playing when he went to bed. About 10 p.m., Bobby Hunt was awakened by a loud rumbling sound. He went out and told Mary to quiet the children down.

She told her husband she was the only one there. The children had left an hour ago.

All that week, the Hunts noticed that Jenkins' kitchen light was on constantly, shining into their bedroom.

The Hunts, who still live in the brick ranch house at 301 Lombardy St., are just as certain that the kitchen light was not on for two weeks, and that there were no quiet weekend evenings before Jenkins' body was found.

And the grass: Jenkins mowed his lawn twice a week, and the grass had not gone unmowed for two weeks. It would have been much higher.

Shown the SBI file stating she last saw Jenkins on April 1, Mary Hunt shook her head at Ransome's report.

"This is not right," she said. "That's wrong there. I didn't say April first. He must have put that down wrong."

Mary Hunt's comments came seven years too late for Alan Gell.

Between his arrest and first trial, four different attorneys were assigned to represent the indigent Alan Gell. Suffice to say, none of them did anything. Well, the first two did accept positions as prosecutors, one in the Bertie County D.A.'s office. Because of the conflict of interest created by Gell's former lawyer taking a job with the very office prosectuting him, the matter was transferred to the office of then-Attorney General, Mike Easley, and headed up by David Hoke and Debra Graves. Hoke and Graves ignored a 1997 Order to turn over all exculpatory evidence to defense counsel. Disturbingly, these two are still with the AG's Special Prosecutions Section, along with Coman and Winstead.

Shortly before the commencement of Gell's trial, on February 2, 1998, his fourth lawyer, assigned to the case but three months earlier, read a newspaper article speaking of the existence of witnesses who had seen Jenkins alive as late as April 10, 1995. The attorney, Maynard Harrell, immediately asked the trial judge to order Hoke and Graves to turn over any exculpatory witness statements contained in the prosecutors' files.

Joe Neff:

The prosecutors replied that there was none. Some witnesses had said they saw Jenkins after April 3, prosecutor Debra Graves said, but they were mistaken.

"Ransome talked to those witnesses a number of times, and the dates change from time to time," Graves said. "There was nothing exculpatory about that information, and consequently we did not provide it."

At Judge Meyer's insistence, however, prosecutors handed over statements by 10 people.

All had been re-interviewed after April 3 had been established as the date of death, Meyer said, and all said they were unsure when they last saw Jenkins.

But "out of an abundance of caution," Meyer let the defense lawyers read the statements.

So on the first day of trial, the state finally gave Gell's lawyers reports of people who said they saw Jenkins alive after April 3.

But only some. All but one of the statements were from people whom Police Chief Godwin and SBI agent Ransome had re-interviewed after telling them Jenkins was killed April 3.

Like all defendants, Gell had the constitutional right to evidence in law enforcement files that could prove his innocence or cast doubt on the truthfulness of witnesses such as Crystal and Shanna.

Whether intentionally or inadvertently, the prosecution team did not turn over the statements of Donald Hale, Jenkins' lifelong friend who said he chatted with him April 7. They also did not provide the account of Willie Hoggard, his across-the-street neighbor who said he saw him that same day; and that of Ricky Alan Odom, who told police he talked with Jenkins about roofing his home on April 7; and that of Jenkins' brother Sidney, who said he had honked at him in town on April 8; and Edward and Margaret Adams, who saw him April 9.

The state did not hand over the tape recording of a phone call involving Crystal Morris, the state's key witness -- a conversation with evidence that Crystal was fabricating her account of the murder. And the state didn't turn over its numerous reports of Jenkins' interest in young girls and payments for sex.

The late production of the witness reports put Harrell at a disadvantage. The trial had begun, and the lawyers were in court all day, with little time to chase down people who might help their case.

On February 25th, the jury took less than one hour to convict Alan Gell of first degree murder.


During the sentencing phase, Harrell put Gell's family and friends on the stand. Pleas for mercy, however, are best accompanied by remorse, and Gell continued to maintain his innocence.

Prosecutor David Hoke called for death in a powerful closing argument that was more sermon than summation. He hammered at Gell for ambushing Jenkins in the sanctity of his own home.

Hoke reminded jurors of the words of Gell's pastor, who testified that Gell had never acknowledged wrongdoing or shown remorse.

Gell interrupted Hoke. "I still deny the charges," he blurted out.

This gave more fuel to Hoke, who asked jurors to think about how important it was for them to feel safe in their own homes.

"Look at that feeling of peace, joy, comfort in your own home," he said. Contrast it to the act done "at the hands of this man who has not yet acknowledged any sorrow."

He addressed the jury, calling each member by name, and then:

"From the Old Testament and the Book of Numbers, anyone who kills a person is to be put to death as a murderer upon the testimony of witnesses. You've heard the testimony of witnesses. ... Now, they might argue to you the New Testament changes all that. No, it doesn't. Jesus didn't come to destroy the law or the prophecies of the Old Testament. He came to fulfill them.

"Listen to this in Deuteronomy. 'Cursed is the man who kills his neighbor secretly and all the people shall say amen. Cursed is the man who kills an innocent person for money, and all the people shall say amen.' It's time to sentence this man, a murderer, to die, and let the people of Bertie County say amen."

The jury needed just two hours to reach a conclusion: death.

As ironically noted by Mr. Neff, "getting sentenced to death was a lucky break for Alan Gell."

As a death row convict, Gell became entitled to two attorneys, paid by the state, to review the entire case -- both the conduct of the trial and the conduct of police and prosecutorial authority in building the investigation and the case against him. Enter Mary Pollard and Jim Cooney. To make this long, tortured story just a bit shorter, suffice to say that Pollard and Cooney undertook the admirable leg work work not even contemplated by any of Alan's prior counsel.

Pollard immediately realized that the date of death was the crucial issue in the case. She contacted Dr. M.G.F. Gilliland, the forensic pathologist who had testified for the prosecution at trial that Jenkins' was killed in a loosely framed window between April 3-8, 1995. Gilliland's testimony was, obviously, a linchpin on which the jury hung its hat in deciding the guilt of Alan Gell. Because ambient temperature, more than any other factor, determines the rate at which a corpse decomposes, and because there was no data given to her regarding the temperature of Jenkins' home in the time between his murder and the discovery of his body, Gilliland told Pollard that she could not more precisely estimate the date of his demise.

Pollard and Conney set out to get that data. A forensic anthropologist, mechanical engineer, and entomologist were retained. Their conjunctive work, which is nicely, if grisly, summarized by Mr. Neff, here, led to the conclusion that Jenkins was killed on either April 8, 9 or 10, 1995. The assumption, accepted by the trial jury, that he was killed on April 3, 1995, was "so unreasonable as to be nearly impossible."

Pollard and Cooney took their experts' test results and conclusions back to Gilliland. Mr. Neff:

For two decades, Gilliland, like Marks and Arends, has worked with the state, helping police and prosecutors. She still has the intensity and focus that cowed Gell's lawyers during trial. But now, in the case of N.C. v. Gell, she is no longer focused on the defense lawyers.

Sitting in her office recently at Pitt Memorial Hospital, surrounded by books, papers, microscopes and files, Gilliland recalled a pretrial conference in January 1998. The prosecution team was there: SBI agent Dwight Ransome, Aulander Police Chief Gordon Godwin, and David Hoke and Debra Graves from the Attorney General's Office.

Gilliland asked about the initial medical examiner's report, which noted that Jenkins was last seen alive on midmorning April 8 by a neighbor.

That person was mistaken, one of the team members said.

"That information had been withdrawn," recalled Gilliland.

Gilliland said she assumed this meant that the neighbor -- one neighbor -- had retracted the statement.

That assumption was demolished when Gilliland met with Gell's lawyers.

She learned that law enforcement had statements from 17 people who saw Jenkins alive after April 3 but had not shared that information with her.

"Seventeen people, that's a clue, that's valuable information," she said. "I would rely on that kind of information."

Gilliland has reviewed the work of Arends, the entomologist, and Marks, of the Body Farm. She is in full agreement with them about Jenkins' time of death.

She rifled briskly through her file folder, extracting some of the withheld statements.

She held up the one from Willie Hoggard, the across-the-street neighbor.

"He lived there 25 years, and he saw [Jenkins] in his truck, and he knows the man very well; he last saw him on the Friday, which is the seventh," she said, rattling the paper. "He's alive on the seventh; he's not decomposing in his house."

She moved on to the statement of Ricky Alan Odom, who told police he talked with Jenkins that same day about putting a roof on his house.

"A job, the man says, he looks at the roof on the seventh," Gilliland said. "That is not having maggots working on your remains."

Gilliland did not attend the trial and did not hear Crystal Morris testify that Gell stood in the bedroom and shot Jenkins in the hallway.

"No, no, no!" Clearly, she said, the killer shot from the hallway into the bedroom.

Crystal Morris "may have intimate knowledge of who was shooting," Gilliland said. "It may have been herself. It could have been somebody else, I don't know -- that's not something that I have information about. But with all of this together, I have better information to when it happened and when it did not happen.

"It did not happen April 3, 1995."

Gilliland is rock certain: The murder occurred while Gell was in jail, probably on April 8 or 9.

"That doesn't mean that poor Mr. Jenkins wasn't killed. It just means that this man didn't do it."

Once the Attorney General's Office was made aware of this frame, and the prosecutorial misconduct of Hoke and Graves, it immediately moved the court to set aside the guilty verdict and free Alan Gell, right?

Um, no. After a thorough reinvestigation, Jim Coman advised Cooper that the matter should be tried again! Coman tried the case himself. He lost. Joe Cheshire sat first chair for Alan Gell at the re-trial. He was assisted by Jim Cooney, Mary Pollard and Brad Bannon.

Hoke and Graves were ultimately tried by the Grievance Committee of the State Bar for their egregious prosecutorial misconduct in the failure to timely provide Mr. Gell's original defense counsel with exculpatory Brady material to which they were absolutely entitled -- conduct that directly resulted in Mr. Gell's wrongful conviction and near execution. In my next post I am going to set forth, in its entirety, Mr. Bannon's letter to the the State Bar regarding his observations of that proceeding. It is a must read. Apparently, this "trial" was nothing but a smoke-filled room, a pig circus, an "old boy" JOKE.

Jim Coman testified on behalf of his office mates at the Bar "trial." Under oath, he said, in direct contravention of precedent settled since 1972, that his pals weren't obligated to turn over impeachment evidence to the defense. (See, Hoke and Graves decided to deem the taped phone call of Crystal Morris, wherein she implicated herself and spoke of the need to frame Gell, merely "impeachment" material, as opposed to "exculpatory"material, because, while it might have "embarrassed" poor Ms. Morris, it did not directly prove Gell's innocence. Kinda like the Nifong-Meehan conspiracy. But different. Snakes, just the same.)

In September, the state's senior prosecutor was in an unusual place: the witness stand. And what he said has caused quite a stir among lawyers around the state.
Jim Coman said under oath that the state Attorney General's Office had a policy of withholding a certain type of evidence helpful to defendants. As he described it, the policy would violate 30 years of U.S. Supreme Court rulings.

Coman now says, however, that his testimony was incorrect. Even so, one prominent law professor said that the prosecutor's September statements may open the door to challenges of numerous convictions in cases tried by the attorney general's staff.

Coman was testifying at the State Bar about the character of two proteges, David Hoke and Debra Graves. They were charged with breaking ethical rules by withholding favorable evidence from former death row inmate Alan Gell. The evidence included a taped telephone call in which the state's star witness said she had to "make up a story" for police.

Hoke and Graves didn't have to turn over the tape, Coman said, because it wasn't "exculpatory"; it didn't prove Gell's innocence.

The tape could have been used to "impeach" the witness, or undercut her credibility, Coman acknowledged. But he said case law didn't require impeachment evidence to be turned over to the defense.

Handing over impeachment evidence has been law since a 1972 U.S. Supreme Court decision. But Coman went on to say it wasn't just his opinion, it was the policy of the Attorney General's Office.

An odd policy

"The prevailing view when I was there the first time, both under Judge [Lacy] Thornburg and Attorney General [Mike] Easley and now Governor Easley," Coman said, "was that just because something embarrassed a witness or might be impeaching to them, did not in and of itself, unless it went to being exculpatory, was not something we had to turn over."

In a recent interview, however, Coman backed away from that description of policy and said his September statements were not correct -- not on the case law, and not on the attorney general's policy.

"I was not very precise," he said. "My use of the term 'impeaching' or 'impeachment' ... would have not been accurate."

It's impossible to know how many times the Attorney General's Office has failed to turn over impeachment evidence, because the material would be in closed files. Coman and Attorney General Roy Cooper said that the department's policy was to obey the law, and that there was no written policy on impeachment evidence.

But in several known cases, lawyers for the attorney general did not hand over impeachment evidence or resisted opening files as the law required:

* In 1993, Hoke, the lead prosecutor in Gell's 1998 trial, was admonished by a trial judge for not turning over impeachment evidence at a murder trial. Hoke told the judge he didn't turn it over because it was "impeachment evidence, not exculpatory evidence."

Questioned by the State Bar under oath, Hoke testified that leading up to Gell's first trial, he thought the tape was impeaching. He did not hand over the tape, he said, because he didn't know impeachment evidence must be produced, despite the previous courtroom lecture.

* While Gell was on death row, the attorney general continued to fight his bid for a new trial long after the withheld evidence surfaced. Those claims of withheld evidence had no merit, the attorney general argued, and Gell should proceed to execution.

* Charles Munsey got off death row in 1999 because the Wilkes County prosecutor withheld impeachment evidence that the state's star witness, a jailhouse informant, was never in Central Prison, where Munsey supposedly confessed to him.

During the trial, a deputy attorney general, Dale Talbert, advised the local prosecutor that prison officials said it was nearly impossible for the witness to have been in Central. Talbert told the local district attorney that the prison officials said it was virtually impossible that he was at Central because there was no record showing that.

* From 1996 to 1998, the Attorney General's Office vehemently fought a new law giving death row inmates access to the complete case files of prosecutors and police. Special Deputy Attorney General Barry McNeill -- the state's leading death-penalty lawyer -- said at a statewide meeting of prosecutors that there was no need to open all law enforcement files, and that his office would help prosecutors ward off attempts to do so.

The state Supreme Court upheld the law, leading to new trials for at least six death row inmates.

Bad news for AG?

Rich Rosen, a law professor at UNC-Chapel Hill and a death-penalty opponent, predicted that Coman's testimony would cause trouble for the Attorney General's Office. "We've got a statement under oath," Rosen said. "I think anyone prosecuted by them in the last 20 years has a right to ask to reopen their files."

Beginning in 1963, the U.S. Supreme Court has repeatedly ruled that prosecutors must hand over evidence that is favorable to defendants. That first decision involved evidence of the defendant's innocence. Later decisions included impeachment evidence.

Gell was convicted in 1998 of murdering a retired truck driver in Bertie County. The withheld evidence led to a new trial; in February a jury quickly acquitted him.

Among other evidence, prosecutors withheld the taped phone conversation, in which the state's alleged eyewitness to the murder talked about how she had to "make up a story" for police, evidence that she was prone to lie to law enforcement.

A formidable witness

Once Gell won a new trial, Coman became deeply familiar with the case. He led the reinvestigation and advised Attorney General Roy Cooper to retry Gell. He was the lead prosecutor at the retrial.

When Hoke and Graves were first investigated for misconduct, Coman filed a sworn affidavit with the State Bar in support of them. In that written statement, he said he wouldn't have given the evidence to the defense, either.

Coman was a formidable witness: a career prosecutor, former head of the State Bureau of Investigation and the state's senior deputy attorney general for law enforcement and prosecutions.

Hoke and Graves were reprimanded for withholding the evidence and bringing the judicial system into disrepute.

Coman said he was using the word "impeaching" as "embarrassing." The legal definition of impeach is the same as in Webster's dictionary: "to discredit."

Coman said he was thinking about how the tape from the Gell trial was embarrassing and humiliating for the state's witnesses.

"I wasn't thinking in terms of how it was defined in the case law," Coman said. "I was thinking only in terms of this transcript, this tape, and that it portrayed the girls in an embarrassing, humiliating position."

Coman's testimony, and Hoke's, will likely be fodder for the special State Bar committee set up to review the Hoke and Graves matter.

The N.C. Academy of Trial Lawyers labeled their testimony "misleading" and a "blanket misstatement" of the law. Brad Bannon, one of Gell's lawyers at his retrial, wrote that Coman and Hoke gave a patently false recitation of the law as a defense for the prosecutors' misconduct.

Gov. Mike Easley was attorney general from 1993 to 2001, when his staff tried and convicted Gell. He declined to be interviewed. So did Lacy Thornburg, who was attorney general from 1985 to 1993 and is now a federal judge in Asheville.

Coman said the Gell case is the only one in his 20 years at the Attorney General's Office where evidence was not handed over as required.

Roy Cooper, who currently holds the office, said he has insisted on a very open policy.

"Attorneys have been instructed to be as open as possible and turn over as much evidence as possible to the defense," Cooper said. "It is in the best interest of a fair trial and helps criminals from getting guilty verdicts overturned."

Cooper said his lawyers would review cases prosecuted by the Attorney General's Office before his term only if challenged in court. He said his staff had no intention of independently going through files to see whether impeachment evidence had been withheld.

Poster "KP" had this to say about Coman today, at FODU:

I just heard who they have picked to handle the case. One of the two AAG's I have spoken with and he is not a fan of the defense team and he made that pertectly clear to me in a call that lasted for more than an hour twenty, back on Sept 22.

I filed a complaint with them back on Sept 21, 2006 and they called me back on the 22. I still have his number on my cell phone at home. The only lawyer he didn't talk about was Mr. Smith for fear of being sued. It looks like we are not going anywhere, anytime soon.

By the way the AAG I'm speaking of is James Coman.


Mary Winstead, Coman's assistant on the Duke Frame assignment, used to work with Mikey at the Durham County D.A.'s office. In the course of her prosecution of one Timothy Malloy for a 1992 rape, Winstead "accidentally" voiced over portions of not one, but two casette tapes bearing recordings of telephone answering machine messages crucial to Mr. Malloy's defense, some time in the year and a half between their creation and pre-trial discovery, during which time the tapes were in the exclusive possession of the state. She was removed from the case. Mikey tried it. Without those pesky audio tapes.


Roy, buddy, you may have blinders on.

We don't.

Thursday, January 11, 2007

I Have To Laugh!

In a 10:12 p.m. comment to this JinC post back in September, I loosely explained the trial lawyer's tactic of "shotgunning." The shotgun approach to evidentiary presentation is a revered old friend of crafty litigators possessed of formidable advocacy skills...and an atrociously weak case. Done well, shotgunning is art. The ultimate art of deception. After all, if you can't dazzle them with brilliance, baffle them with bullshit. Here, I speak not of brilliant intellect, but the brilliance of truth.

Another axiom of trial practice is that, "Good cases makes good lawyers." Indeed, it is expected that an advocate armed with the strength of dispositive facts will be able to shoot them, with scoped rifle precision, to score "bullseyes" at verdict. By natural extension, it is also said that, "Winning weak cases makes great lawyers."

I'm sure that Defendant Nifong has developed capable courtroom skills during his twenty eight years toiling in the bowels of Durham. I'm also sure that he knew early on, clearly by April 10th, that the alleged "Duke Rape case" was atrociously weak. In fact, he knew then that the accuser was wholly incredible, that there was no favorable disinterested eyewitness, that the scientific and forensic evidence wasn't there, and that this case was all but un-winnable. All but un-winnable but for that particularly nasty shotgun pellet called "Race Bait." See, Defendant Nifong fancied himself a great trial attorney, the proverbial cock o' the walk. Armed with a narcissistic, borderline personality disorder and the complicity of Hometown Players Titus and Stephens, Defendant Nifong was positive that he would be able to pull it off. He thought he'd simply shotgun his way through the gauntlet of discovery. He'd shotgun his way through a jury selection at which he'd seat as many of Durham County's stupidest, most hate-filled, pitchfork wielding racist Whiners as he could. Then he'd shotgun his way through trial, and blow up the target bearing Dave's, Reade's, and Collin's faces at its center. The other thing I'm sure of, however, is that Defendant Nifong had absolutely no idea just whom he had decided to fuck with, nor the strength of their resolve.

Defendant Nifong, you're not in Durham any more. Not the Durham you've known, anyway. No quick and dirty dispositions with the likes of Bourlon and Monks and L.R. "Lee" Castle today, tough guy. No more Ronnie and Kenny to guard your six. You're in the big time, now, Douche. You're bad! You're Nation-wide! Hell, you're big in Japan.

Which is why I have to laugh.

You actually thought you could shotgun your way through the Seligmanns? The Finnertys? The Evans's? Thought you'd blow away this team of defense attorneys, support staff and investigators? You really do seem to be certifiably insane. Too funny.

I'm sure you've read the defendants' latest motion. I bet you're re-reading it with Linwood right now. Isn't it is a thing of beauty? That, Defendant Nifong, is good lawyering. I hesitate to call it great, what with you and Crystal and Linwood all but handing them your heads on a silver platter. This shotgun approach, Defendant Nifong, is not art. In fact, I am struck by sudden mind's eye loop of the classic scene from The Odd Couple, in which a crestfallen, apron wearing Felix (Jack Lemon) bemoans Oscar's (Walter Matthau) lack of appreciation and culinary ignorance:

Felix: It's not spaghetti. It's linguini.
Oscar: Linguini?
Felix: Ha! You didn't even know that's linguini! It's not spaghetti. It's linguini!
Oscar: Linguini? [Throwing plate of linguini against the kitchen wall, where it momentarily sticks before starting its inexorable ooze to the floor]
Now it's garbage!

Oh, how my wife laughed when she read this

While the accuser now claims that “Adam” and “Matt” were both of the names used by Reade Seligmann, she provided vastly different descriptions for “Matt” and “Adam” on March 16: “Matt was heavy set with short hair and weighs 260lbs to 270lbs while “Adam” was “short, red cheeks, fluffy hair, stubby face with brown hair. Significantly, she also described “Brett” as “chubby” and claims that she saw a picture of him in the house. Similarly she now claims that Dave Evans is “Adam” and “Brett,” even though she gave two different descriptions for Adam and Brett on March 16. In short, the accuser has provided three different descriptions for what she now claims are only two men. Of course, if the SANE interview was truthful, then Dave Evans (as “Dan” who is really “Matt”) is “Matt,” “Adam,” and “Brett,” which means that the accuser has given three different descriptions for the same person . . . [and] if the accuser’s December 21 statement is to be believed, then “Dan” and “Brett” are the same person; yet in her written statement of April 6, she claimed that she was beaten by both Dan and Brett, and never informed police that it was the same person.

and this

According to the accuser’s most recent telling, she apparently spoke with someone at her father’s home for 7 minutes during the time that she was planning her nude dance routine, during the time that she was dancing, and then as she was fleeing to the car. In addition, the accuser was apparently talking with someone on her cell phone at the time that she was walking back into the house and being “kidnapped” into the bathroom. She finished her last conversation at the time the rape was beginning. None of these facts has ever been mentioned in any statement that the accuser has given to date in this case . . . [while] at the height of the sexual attack now claimed by the accuser, Reade Seligmann was having a telephone conversation.

and this

Since Dave Evans had a “5 o’clock shadow” in the picture the accuser was shown on April 4, and since her response was that he “looks like him without the mustache,” her claim now that a “mustache” is not a “mustache” indicates that her statement on April 4 is, again, no longer reliable.

and this

To believe the accuser’s present claim that her vagina was wiped with this towel, that her face was wiped with this towel, that Dave Evans was wiped with this towel, and that the floor was wiped with this towel, would require the belief that this towel could wipe away all DNA from her attackers on the accuser’s body, but leave the DNA of other, unknown males. It further requires the belief that the accuser’s face and vagina could be wiped with this towel, but leave no trace of her DNA on the towel. Further, it requires the belief that the floor could be wiped with this towel, but that it would only wipe Dave Evans’ DNA, leaving Matt Zash’s DNA behind on the floor. Finally, the towel, while apparently obliterating any DNA left behind by the alleged attackers on the accuser’s body, somehow contained only one of her attackers’ DNA, despite her multiple claims that two of her attackers penetrated her rectum and vagina with their penises.

and this

Since, at this point in time, Dave Evans can be one, two, three or even four different attackers, Reade Seligman can be one or two different attackers—and Collin Finnerty is an unidentified attacker—the accuser is now free to say that any of the Defendants did any act or all of the acts that she claims happened without regard to her previous statements or interviews. In short, by claiming that any one of the Defendants could be any or all of her attackers, the accuser has now created the equivalent of a “do over” in an attempt to try to make sense of her prior conflicting statements.

and this

Rather than attempt to identify her attackers as Matt, Brett and Adam, the accuser used the names of the Defendants in her most recent telling of her story. Specifically, the investigator noted that ‘Inv. Wilson asked [the accuser] to tell him whose names the guys were using on March 13, 2006 since she knows their real names.’ The State has repeatedly represented to this Court that no substantive discussions of this case took place with the accuser from April 6, 2006 until this last interview. The fact that the accuser now “knows their real names” indicates that she has learned their names from the extensive publicity that this case has received, publicity that has necessarily included the Defendants’ faces as well as their names. It cannot be known at this time with any reliability what else she has learned from this publicity. This, in turn, means that the accuser’s present recollection of who allegedly attacked her and how, has been irreparably tainted by this publicity and weighs strongly against any in-court identification by her of the Defendants.

and this hilarious little nugget of "oops" that slapped Liestoppers in their collective faces. Don't you know about strippers, dude? It's all about the shoes.

Oh, how we laughed when we read this

Was it a penis, or . . . “object”?

“I couldn’t say 100% that I saw them use their penis but it was certainly something.” LW 12/21/06 notes at 4.
“I believe it was their penis.” Id.
“It felt like a penis.” Id.
It penetrated me vaginally. [1]
It penetrated my butt. [2]
It did not use a condom. [3]
It raped me. [4]
It had sex with me for about two minutes in my vagina. [5]
It got frustrated because it couldn’t come. [5]
It had sex with me for 5 minutes. [6]
It then went into my anus for 2 minutes. [6]
I think it ejaculated. [7]

But was it a penis???
Alas, “I can’t say 100% that it was a penis that was used….” LW 12/21/06 notes at 4.

(1) Collin Finnerty "is the guy who assaulted me . . . . He put his penis in my anus and my vagina." Transcript of April 4 Powerpoint Identification, 1/11/07 Motion at 11 (Discovery at 1838). "At that point Matt then moved around to her front side where he penetrated her vagina.” Gottlieb Notes, 1/11/07 Motion at 11 (Discovery at 1817). "Matt had her legs and Brett was behind her and put his private part in her anus and in her vagina. . . . ." Himan's Interview, 1/11/07 Motion at 12 (Discovery at 1208).

(2) “That’s when Adam came around back and put his private part in my butt." Sane Interview, 1/11/07 Motion at 12 (Discovery at 539).

(3) “Adam said yes you can and then that was [when] Matt put his private part in me and did not use a condom." Sane Interview 1/11/07 Motion at 11 (Discovery at 538).

(4) “She stated that Brett was behind her and was the first to sodomize and then to rape her. She stated that Brett ejaculated . . . ." Gottlieb's Interview, 1/11/07 Motion at 12 (Discovery at 1817).

(5) "Matt started having sex with me in my vagina and he got frustrated because he said he couldn't come, He [sic] had sex with me for about 2 minutes in my vagina. . . ." Accuser's Handwritten Statement, 1/11/07 Motion at 12 (Discovery at 810).

(6) “Brett had sex with me in my vagina he stopped after about 5 minutes, then he put his penis in my anus for about 2 minutes." Accuser's Handwritten Statement, 1/11/07 Motion at 12 (Discovery at 810).

(7) "Matt had her legs and Brett was behind her and put his private part in her anus and in her vagina. She stated that she thinks he ejaculated . . . ." Himan's Interview, 1/11/07 Motion at 12 (Discovery at 1208). “She stated that Brett was behind her and was the first to sodomize and then to rape her. She stated that Brett ejaculated . . . ." Gottlieb's Interview, 1/11/07 Motion at 12 (Discovery at 1817).

We both just laughed and laughed. As I sat on the couch staring at her back as she read and laughed , she turned over her shoulder and said, "This sounds like a bad Woody Allen screenplay." And, hoo, boy, when we considered just how you'd feel being likened to Woody Allen, did we ever laugh and laugh all the harder.

Then, we read this

Meehan says writing an incomplete report violates his own firm's standards. "It was an error in judgment on my part. … It certainly was a big error," says Meehan. He says his firm wasn't trying to hide the information and that it released it when it was asked. But his client's behavior irks him, he says.

Nifong took six months to tell the players' defense attorneys about the other DNA, as required by law — and during that time, Nifong filed a court motion that stated he was not aware of any potentially exculpatory evidence.

The fact that Nifong withheld the information and knew it before he indicted their sons has outraged the parents of the accused. "You felt like someone hit you with a baseball bat. … It was almost too much to bear, as we sat there," says Kathy Seligmann, whose son, Reade, is among the three indicted players. "And [Nifong is] sitting 10 feet away from us."

It enraged Mary Ellen Finnerty, mother of Collin Finnerty, another indicted player. "I think [I felt] one of the strongest feelings of rage that I've had … I literally had to turn to my husband, because I was shaking from my head to my toe, and say, 'Hold me down,'" recalls Finnerty. Adds Seligmann, "And we had to hold on to each other because when you sit there and put two and two together and realize that it was calculated … set up to make these boys appear to be guilty of something they didn't do"

and stopped laughing.

Thankfully, Mrs. Evans' immediately following quote brought smiles back to our faces:

When asked what they would say to Nifong if he were in the room, Rae Evans, the mother of indicted player David Evans, says, "I would say with a smile on my face, 'Mr. Nifong, you've picked on the wrong families … and you will pay every day for the rest of your life.'"

May you both rot in hell.

Tuesday, January 02, 2007

Ham Sandwich Indicts Nifong

Last Friday, Mary Katharine Ham released the wickedly ironic and darkly humorous Tour Of Things That Did Not Happen In Durham. Actually a "HamNation" production, drawing upon the talents of her mom, dad, and brothers, this short (2:58) satire is must viewing for Andrew Cohen and the other two extra-terrestrials yet in need of a "Talk To Me Like I'm Three Years Old" tutorial of non-events in Durham over the last ten months.

Today, dad Jon Ham, who's been chiming in with pithy Hoax-Frame commentary for some time now, grabbed the family camcorder in the hope of memorializing Defendant Mike Nifong standing, chest out, chin square, hand raised in Boy Scout salute, while swearing to uphold the laws of the State of North Carolina and the Constitution of the United States. Alas, Jon was deprived of the opportunity to record the historic moment, as was the rest of the media and the public at large, because, as Defendant Nifong explained, "I scheduled it at 8:00 knowing full well the courthouse opened at 8:30."

Captain Bill Wrenn, of the Durham County Sheriff's Department, told a WDTV reporter that he had been told "no" when he had asked if he should let people into the building in advance of the historic farce sham puke-inducement travesty tragedy swearing-in ceremony. Asked who had told him "no," Captain Wrenn replied, "I asked Mr. Nifong."

Defendant Nifong was finally found, not in his 6th Floor office hard at work fighting crime, but, sitting in a 5th Floor courtroom flanked by his mommy wife, the Stepfordian Cy Gurney, and mortified son, Bryan. Jon was able to get this absolutely mesmerizing video of Defendant Nifong under siege from a clearly agitated press corps. "Mesmerizing" in that sort of way one might become rapt on starting to look at a jungle disease book. You get sicker as you go along but you can't stop.

Gone was the trademark cocksure smirk. Defendant Nifong appeared dispassionate, subdued, anesthetized. He can still think up a lie, though, and think it up quick. Pressed as to why the media and public were not permitted to witness the swearing in of a public official, Defendant Nifong explained that

"there are ceremonial ceremonies, and then there are 'let's do this so we can get to work' ceremonies...because we had to be at work at 8:30...As I've indicated, you know, there's ceremonial ceremonies such as the one we had when I was appointed to this office back in 2005 but, now what we have is an office with twenty-one lawyers, all of whom have previously been sworn in, so the ceremonies are over. We have to get sworn in so we can get back to work...this was not a media event; this was an event that was required of us so that we could get back to work and do our jobs."

Just chew on that for a while. Go ahead. Take your time. It tastes real bad and you just can't swallow it. Poor Mike. Poor Cy. Poor Bryan. What should have been the crowning moment of his career became but an embarrassing "necessity" that he had to lie about. Foisting yet another public deception off on his poor staff. Sick. Explain to us again the relevance of the other twenty one previously sworn lawyers in your office, working on the floor above, whose need to get to work necessitated the closure to the public of a fifth floor courtroom. Please, do explain that again. This guy has "truly gone fishing."

Scarily, Defendant Nifong affirmed that he is looking forward to what he "can do next," feigned pride in "a lot of good that has been accomplished in the eighteen, 20 months since I've been the District Attorney here," and vowed "to do a whole lot more."

Bloggers beware: He WILL spit on your burgers.

Defendant Nifong then went fully Queeg, and displayed the true depth of his psychotic, delusional, borderline personality disorder with narcissistic overlay:

"Obviously, as witnessed by the fact that you're all here talking to me, when there's so much other stuff going on, is...Durham has some healing to do and I need to be a part of that healing process and I need to have something to do with what, how, how, we move forward from the events that have brought you all here because you're not here today for a swearing-in, you're here today because of the things that happened during the course of the last year." [Poor Bryan chewed gum tensely and appeared to stare at his shoetips as Dear Ol' Dad loosed this rancid stream.]

Asked if he felt he was a part of the problem in Durham, Defendant Nifong continued:

"No, I don't think I'm part of the problem. I feel I have assisted in revealing the problem, um, and, you know, if we get to the point where it appears my presence, um, in an investigation or, and so on, in, in anything like that is a hindrance, then we can deal with that at that time."

Over the rainbow,
He is craaaaazy!
Bars in the windows.

The time is now, Defendant Nifong. Where are the Feds? Get him out of there.

The best scene of Jon's video is its last. As a reporter smugly, or timidly, I'm not sure which, offers, "Sorry, Mrs. Nifong," Defendant "Elvis" leaves the building and the camera lens swings towards the front of the courtroom. For the first time it is revealed that, even as his destruction is being forever recorded for Bryan's future therapists, Defendant Nifong still maintains an odd Svengalian hold over the administration of justice in Durham. Four judges stand in the well, appearing to be awaiting their own swear-ins, as Senior Justice Orlando Hudson sits, silently waiting, on the bench. WTF?

Truly, cinema of the absurd.