Among the cable TV talking heads who enabled Mike Nifong, one person has largely escaped attention. Wendy Murphy comes across as the caricature of an extremist. Georgia Goslee was candid about her qualifications to comment on the case: “I’m not familiar with the
An equally consistent—and outrageous—defender of Nifong was a figure of considerably more heft. Norm Early served 13 years as
Early is also media relations director and consultant for the National District Attorneys Association, an organization that serves as “the voice of
Given both Early’s background as a longstanding big-city prosecutor and the NDAA’s mission, the Duke case should be a wakeup call for everyone. Over a nine-month period, the system that Early outlined was one in which prosecutors view all defense attorneys with contempt, while they themselves feel no obligation to follow their own procedures. And in Early’s justice system, the burden of proof is on the defense (whose lawyers, he regularly pointed out, cannot be believed) to prove the defendant (or at least the defendants in a case that Early found politically appealing) innocent beyond any and all reasonable doubt.
The issue is whether the lineup and the photos that she is shown suggests to her who the culprit is, and one issue would be, did they tell her that there were only lacrosse players, so she’s expecting the person to be there. [They did, but that didn’t seem to bother Early.]
But nonetheless, they’re all white males, it’s not as if though you’re looking for an African American and you have 26 white guys and one African American guy because that would be clearly a suggestive lineup, so we’re talking about all white males. You can’t see their height probably, so that’s not suggestive and if their hair colors are similar, you know, you don’t -- you may not have a suggestive lineup. Showing them for a minute apiece and showing them in that fashion where they’re up on the wall, maybe that is something that has been cleared with their police department on other occasions where judges have said that that procedure is OK.
It wasn’t OK, but on May 7 Early dismissed complaints about the lineup in any event. From defense attorneys’ perspective, he noted, “they don’t think there’s any such thing as a perfect lineup.” Translation: because defense lawyers often complain about lineups, prosecutors can do whatever they want.
Lack of DNA Evidence
In the March 23 non-testimonial order, Mike Nifong’s office asserted, “The DNA evidence requested will immediately rule out any innocent persons, and show conclusive evidence as to who the suspect(s) are in the alleged violent attack upon this victim.” Once the DNA tests came back negative, however, Early seemed to forget that the DA once had viewed DNA as critical. He offered a variety of theories:
- April 24: “I think that the district attorney thinks they have a case, based upon the victim’s story, that may not be inconsistent with no DNA.” (Actually, the accuser had stated her attackers ejaculated and didn’t use condoms.)
- May 4: “The prosecutor in this case has been in office for 27 years . . . so the benefit that he has, as a prosecutor, is being able to compare the facts in this case, as he knows them, to the facts in other cases that he’s had as a prosecutor. And he’s able to gauge whether this is a good case or a bad case.” (Actually, Nifong had used discovery of someone else’s DNA to dismiss charges in another rape case.)
Reade Seligmann’s Alibi
Nifong’s facilitators always struggled with this issue. Lester Munson of cnnsi.com suggested that for having the audacity to present an alibi, Seligmann might be indicted for obstructing justice. For Early, Seligmann’s alibi—stunningly—suggested his guilt. Here he was on May 4:
Now, as to Reade Seligmann, maybe he believes that out of all the people at this party, 37 people, she just happens to pick the one who has a “alibi.” And why would he have the “alibi?” Because maybe he felt like he needed one and started manufacturing one.
Dan Abrams, taken aback, commented that “it’s usually the defense attorneys who are obscuring the issues.”
Nifong’s Professional Ethics
Nifong was a man of integrity, according to Early—presumably because he was prosecuting a case that Early found politically attractive. Asked on May 15 whether it was normal for a prosecutor to refuse to consider defense evidence (in this case, the defense proof that Dave Evans never had a mustache), Early was blasé. It was “unfortunate,” he noted,
But let’s remember one thing. None of us know what happened that night. None of us were there, and the fact of the matter is that what we do know has come as a result of what’s largely defense spin, defense attorneys putting information out to the public about this case. It has not been prosecution spin, but defense spin.
What that had to do with Nifong refusing to meet with defense attorneys to consider evidence Early never revealed. In any event, he affirmed on May 22, “we have to presume is that Mike Nifong is a man of integrity and that he believes in his case and that he’s not doing anything malicious here.” Men of integrity, apparently, routinely instruct police to violate their own procedures. And this “man of integrity” was opposed, in Early’s mind by the forces of evil. Here he was on June 11:
The defense attorneys are there to muddy the waters. You can’t expect anything they say to be said without viewing it through their own prism. They’re there to obfuscate the facts. They’re not there to educate the public.
The Accuser’s Inconsistent Stories
In a phrase: no problem. It didn’t really matter that the accuser told each and every police officer with whom she spoke a different story. People should only listen, Early suggested on June 20, to SANE nurse-in-training Tara Levicy.
[The accuser] was talking to an officer that she did not have a lot of rapport with, someone that she didn’t feel comfortable and telling her story to . . . I think she probably felt a lot more comfortable talking to the woman who was the nurse.
Moreover, Early suggested, inconsistencies don’t really matter, as long as she kept saying she was attacked:
That’s the way I would look at this, to see if I can understand what she’s trying to convey in its totality. So in order to see whether or not this is a consistent statement, I would have to see the whole thing and I would also have to see all of what she said to other people in order to piece it together for me to see where the truth rings. Now Mike Nifong, who is the elected district attorney there, who has taken an oath to uphold the Constitution in his state has looked at this thing in its entirety and according to his oath, he says I believe this happened.
The Criminal Justice System
Some people might consider what occurred in
That is not a fair system. That is an unfair system, which allows defendants never to see the inside of a courtroom, because of the pressure the defense attorneys put on victims and because that pressure is picked up by the media.
Dropping of the Rape Charge
Early did admit that the accuser’s dramatically new Dec. 21 tale gave him pause. But when asked to analyze Nifong’s performance, he just couldn’t say.
I don’t know whether he’s done a great job, an average job, a medium job of handling this case, because I don’t know all the evidence. But what I do know is that the defense has done a very good job of trying to smear the victim and smear Mr. Nifong.
After speaking too much at the start, Early believed that Nifong “has been trying to try his case in the courtroom, which is what he should do. He’s filed his motions. He’s lived up to his obligations as a prosecutor.” Early never said what “motions” he was talking about—in nine months, Nifong filed a grand total of one motion, dealing with the defense poll of the potential jury pool.
Asked on December 30 about the Bar filing ethics charges against Nifong, Early termed the move “outrageous. I think it’s an escalation of the defense’s attempts to get Mr. Nifong to drop the case or get him thrown off the case. I think it’s extremely unfortunate that they are looking at his statements, and not the defense counsel, who have made many comments that were misleading and inaccurate.” He never identified what defense comments were “misleading and inaccurate,” and how the decision of the State Bar—an independent entity—was part of the defense plot against Nifong.
Reflecting on Early’s performance one evening, Dan Abrams remarked, “I’m suddenly hearing prosecutors talking like defense attorneys on this program, that all of the evidence we do know about points away from guilt. And yet all the prosecutors can say is, well, maybe we don’t know everything, maybe there’s more.”
Maybe his comments on the lacrosse case demonstrated how Early prosecuted cases in