Until Proven Innocent: The Duke Rape Case

Good afternoon, welcome to the Cato institute. Let me also welcome the C-Span viewers, my name is Roger Pilon, I am director of Cato center for constitutional studies and your host this afternoon. As members of this audience know the Cato institute stands for liberty and limited government. In our system of government prosecutors play a good role, they enforce the law by investigating allegations of wrong doing and where they find evidence warrants it that by bringing charges against accused of wrong doing thereby securing the liberty, the law was meant to secure. That's an awesome power, necessary if we were to have freedom but fraught with potential for abuse. We all know of examples of prosecutorial abuse, the prosecutions that took place in the south during the Jim Crow era, the prick war which Wall Street figures during the 1980's instigated by one of the leading presidential candidates today, which ended most often in acquittals. The prosecution of alleged day care molesters in various parts of the country during the 1990s. And then today we have got prosecutions of doctors administering pain medication. But perhaps no example of prosecutorial abuse so captured the nation's attention in recent years is the one that unfolded over the past year and a half in Duke University in Durham, North Carolina. Had all the elements that make it for fodder for 24x7 cable tv and talk radio. Privileged white college athletes attending an Elite University accused of gang raping single black mother on her working her way through college as a stripper. And so the country watched and listened as this drama unfolded ending eventually thanks to an outstanding defense team with the truth coming out and the accused exonerated. But it's a drama that needs to be told and told well and we are fortunate that we have the telling of that in the form of the book we are here to discuss today "Until Proven Innocent: Political Correctness and the Shameful Injustices of the Duke Lacrosse Rape Case" coauthored by Stuart Taylor Junior and KC Johnson. Professor Johnson is in Duke today discussing the book, Stuart Taylor is with us. So let me introduce him to you. Stuart will speak for about half an hour about his book and then we are going to hear from Victoria Toensing with comments on it and then we are going to open it up to you for questions and answers. Stuart is non resident senior fellow at the Brookings institution in government studies. He is also a columnist with national journal and the legal times and a contributing editor to news review. He is a graduate of Princeton University and the Harvard Law School; he has been a senior writer to American lawyer media. He has been a McGraw distinguished lecturer in writing at Princeton university, He has been a reporter in Supreme Court correspondent to the New York Times and he is the author of several books and countless articles. So without further ado, would you please welcome Stuart Taylor? Okay thanks very much to Roger for that very generous introduction. Thanks very much Roger and the Cato institute for hosting this event and I think it's very an event that resonates very well with Cato's mission not only in the criminal process but in terms of our entire society. And Roger has so beautifully summarized that the case and the lessons of it, so some of you may be asking yourself so why did I write a book. Why not just an op-ed, why not just a column? And I did a couple of columns on the case early on questioning the rush to the judgment. And what astonished me as I was writing those columns or after wards, I was worried that the case was going to fall apart during the 36 hours between when I started writing this when I filed this column on April 27th and it's publication a few days later 36 hours later. And - so I wrote it defensively thinking well, everybody is going to know there wasn't a rape by the time this comes out things happen fast in our society, than media can figure things out fast and and so I write it defensively and I said well you may know by the time this runs that there wasn't a rape but there are lot of people who want to turn to demonizing these Duke Lacrosse players as rich privileged white vicious males who were drunks and racists and terrible people and so forth, mysogenists even if they are not rapists and I waited for the world, the rest of the media to look at the same evidence I was looking at and it wasn't that hard to find, a lot of it was laying out in plain view including the DNA evidence, there was almost conclusive proof of guilt under the circumstances in this case and the rush to judgment against Duke Lacrosse players continued, it was not just a matter of presuming them guilty before proving innocent, they continued to be presumed guilty after they were presumed innocent, I am sorry after they were proven innocent and their own faculty, many members their own faculty and and by many in the media and so I thought this is more than just a little story about a bad rape case in Durham North Carolina with Duke students, I thought this this result this shows that there is some national pathologies at all and all I'll get to why national that are worthy of extended treatment, there is something wrong with many in the news media if they are behaving in this fashion, there is some thing wrong with many in the Duke faculty if they are behaving in this fashion, there is some thing wrong with the Duke administration if it's behaving in this fashion and I don't think Duke is all that different in that regard from many other universities in America today So I dove in and I can't say that when I started I expected the case were to end with a thunderclap. I mean I thought part of my burden was going to be convince people that after the case fizzledl out and was dismissed, they really were innocent. I wasn't counting on the north Carolina Attorney General Roy Cooper declaring them innocent. Prosecutors don't do that much I was in County Nifong, the road district attorney being disbarred found in contempt of court, put in jail for 24 hours so far and now perhaps under investigation by the Attorney General - the same Attorney General North Carolina Roy Cooper on the recommendation by the way of Nifong successor, he is now likely to be investigated for obstruction of justice and other crimes that would carry far more serious penalties than the one count of lying to the court of which he was convicted a couple of weeks ago and so so I think as the need to prove the innocence of the defendants resident, I think they didn't change writing the book much because I thought first I think it's an inherently riveting story, what happened to these young men who did it and how they weathered it, they weathered it was class and courage, their families weathered it with class and courage, many people would still like to depict them who just hate them because of their class in a difference sense of the word or their perceived class - many people just don't want to like them and and one of the joys of writing the book was getting to know a lot of really terrific people and a lot of really terrific defense lawyers who also the terrific people and so I thought that story was worth telling in detail in part just because it is interesting and I hope we did that well. But the lessons I think also are larger than an op-ed can convey, the law enforcement abuses here in my opinion were far worse than is generally realized. I am struck by people of who have read our book "until proven innocent" that they come up to me and they say "I am angry, I am astonished that how bad this was I am astonished at how, you know this guy Nifong, he knew they were innocent" people will say and and the book would lead you to that conclusion, I can't read his mind but I can tell you that from the very beginning, he had reason - he had evidence that cast grave doubt on the veracity of this stripper on whose word he was relying a prostitute really as well as the stripper and he told the two police officers with whom he had his very first discussion of the case on march 27 of 2006, Sergeant Gottlieb and Detective Hyman, he used a familiar Anglo Saxon monosyllable to say "we're" and then he used that monosyllable to convey this is going to be a very hard case to prove that's the most charitable interpretation of what he said, a less charitable interpretation as it's really going to be hard to frame these innocent defendants and then that day after that meeting, after it being shown reports that she contradicted herself all over the place and so forth, after having in his hand reports that showed complete cooperation with the police by the three residents of the house, when the police raided it and questioned them and they answered every question, they gave lie detector - they offered to take lie detector test they are willing, they gave DNA, fingerprint samples, they helped the police search their house. they showed them where everything they were looking for and - behaving very unlike guilty people. Nifong knew all this and on March 27th, March 28th, March 29th, March 30th, March 31st, April 1st he gave the most extra ordinary succession of incendiary, inflammatory statements attacking presumptively innocent criminal defendants said they weren't even criminal defendants yet, not even charged attacking everyone who was at the party, basically they were saying "well we know the three of them are rapists and the rest of them the accomplices so unless they come forward and rat out the rapists, we will prosecute all of them" and as time passed, he - evidence came pouring into him pouring into him. The warrant that was that required that all 46 white Lacrosse players, but the one black player was exempt because the woman had said they were white to give DNA samples. The prosecution wrote on the warrant that this will establish the innocence of anyone who doesn't have a DNA match flat unqualified. Well, Nifong learns on March 28th or 29th - one or two days after being in the case - he learns informally of the results to the state DNA testing, no match. Period. Case closed. You would think. No. as soon as he heard this, Nifong started publically saying DNA DNA doesn't prove anything. We prove the rape cases in the old fashion way, we put the victim on the stand and we let her tell her story and he also said in public statements he he almost suggested that he was legally required to bring rape charges if a woman said she had been raped no matter how conclusive the DNA or other objective evidence might be that it didn't occur. He sat on that DNA evidence as long as he could, rigged a transparently phony line up photo ID process to get the woman to identify three rapists, any three rapists. The people she inconveniently, she identified four rapists but you know, he just forgot about one of them. One of the rapists she did identify Collin Finnerty is six feet four inches and much thinner than I am. All of the all of the description she had given in the police the first time were rather short, rather heavy set, rather dark. You couldn't pick anyone who looked less like who she'd describe than Collin Finnerty, so why Collin Finnerty? Not sure but he does come from one of the wealthiest families of all the members of the Lacrosse team and you can research these things by checking zip codes and the like and the others were Reade Seligmann and Dave Evans. Well they didn't dike Dave Evans right away because she said, "I am 90 percent sure that that's one of the guys that raped me except that he had a moustache". Well, Dave Evans quickly proved he never had a moustache, not the day of, not the day before, not the day after. And also inconveniently, she had already looked at his picture twice on march 21st and she had said now I have never I never saw him before. So her memory had improved between March 21st and April 4th. Finally, the DNA evidence becomes public because north Carolina law requires that it would be given the defense and that was on April 10th and the defense had a press conference and Nifong not only waved aside the evidence, said, "well, they probably used condoms or and things like that - he had reports in his hands that that the woman had said repeatedly, they did not use condoms and described what they did in ways that made it fairly clear that she would have known they were using condoms, if they had been. But Nifong says, may be they used condoms. The very at the very time the defense lawyers were pouring over this evidence figuring out how strong the evidence was for them and preparing to have a press conference which they did that day April 10th of 2006. Nifong was meeting with Bryan Meehan, his own personal private, he had hired somebody else when the state's tests were negative, he heard this guy Bryan Meehan private lab because they had something called Y-STR testing which is more sensitive than a lot of DNA testing and can find, well, let's put it this way "during the cross examination on December 15th one of the defense lawyers said, now Dr. Meehan your reports suggests that some DNA that might possibly be David Evans' found on her finger nail. Is that correct? Yes, that's correct. Dr. Meehan, isn't clear that the DNA of - that your own DNA which was found on the rape kid is a much better match than David Evans's was because of contamination?" Why, yes it was so much for that. anyhow that didn't stop Nifong and it didn't stop by the way the police officers who were working on the case and who attended that meeting with Meehan and who had just about as much information may be more that Nifong did prove his innocence from continuing to go along, he had accomplices, there was a sexual assault nurse trainee who turned out to be a far out criminist ideologue who supported the theory that there was rape and her stories to the police. And right to the end in spite of the fact that her own records and all the other medical records contradicted almost everything she said that tended to suggest that there was rape. She basically admitted to a defense lawyer, I have believed every rape charge I have ever heard, women don't lie about these things worse to that affect and so she was - may be not a accomplice in a legal sense but she certainly was a helper. And and then there were other enablers in the media and at Duke and I'm about to come to them. But Nifong stuck with that case to the end. The the evidence that this was a lie became more and more conclusive I mean I think he knew it by the end of March. He certainly knew it by the middle of April when he brought the first two indictments, he had to know it in spades by early May or by the middle of May when he indicted Dave Evans, he just kept charging ahead. And that brings me to the way the academics served as enablers of this rogue prosecution. By the way, one thing I haven't emphasized yet is the Nifong's ethical violations the hiding of exculpatory DNA evidence the and I this was Brian Meehan found the DNA of multiple males on or in this woman; the problem was that none of them were Duke Lacrosse players. That was even more exculpatory perhaps than what the states lab had found. But Nifong and Meehan agreed conspired would be a better word for it perhaps to hide this evidence from the defense and they succeeded in hiding it from the defense for many months until some really good defense lawering finally got them to cough up forced them to cough up 2000 pages of documents and some really good sleuthing through these 2000 pages of documents written in Sanskrit or something like it. Found the evidence of the multiple males. But the meanwhile what is the media doing? From the very well, at the very beginning the Raleigh News and Observer did one of the most disgraceful stories in the whole in the whole episode. It spoke through out of the woman, banner headline interview with these supposed victim, spoke through out of her the supposed victim as a victim without any allege no allege in the headline. Uncritically parroted her claims that they had been chanting racial epithets at her and in general it was guilty guilty - guilty throughout that article. That was based in part on a police spokesperson who had been saying things like this even though all the police at the hospital the night the woman made this these claims disbelieved her because she was so transparently and transparently incredible. Then Nifong begins his rant to the affect of their guilty, and I gave the media little bit of a pass on being very impressed and everybody else, a little bit of a pass on being very impressed for a few days with the idea that well, prosecutors don't do this. Unless - unless they have really got the goods so he must have the goods. That would be a reasonable supposition, it doesn't justify a presumption of guilt but it certainly justifies some skepticism about innocence, suspension of disbelief at least. Well, that was that was good for about three days. But then the defense lawyers had a press conference and the defendant said - and they said, we are innocent and the DNA will prove it and those of you who are familiar with criminal defense know that it would be insanity for a criminal defense lawyer whose client is accused of rape to say that DNA will prove he didn't do it unless he is very-very sure because if it turns out the DNA when it comes out shows - oh his DNA was there. Well, the only possible defense at that point is consent you throw that defense out the window when you say before you have seen it that the DNA will prove innocence. The defendant said the same thing. The DNA would - the New York times - the first New York times reporter on the case, a fellow named George Rapp who covered horse races but who is doing a very good job on this case actually, he wrote parroted what Nifong he he reported Nifong's statements a first couple of days, that dominated his stories as they should have that that was a news event but then he started talking to the defense lawyers, one of the defense lawyers told me that George Rapp called him ten times well that may be more times than the entire rest of the national media spent calling the defense lawyers combined over the first month of the case because there wasn't much of that but George Rapp at the New York times did it and - and he wrote stories reporting the defense theories and reporting them in a in an open way and and the defense lawyers, a couple of them Bill Thomason and one other got together and said this guy has been fair, he is good, let's give him all of our evidence they didn't have they didn't have nearly as much then as they came to have but lets give him our evidence and may be help turn this around with a big story in the New York times, they give him the evidence wait for the big story, George Rapp calls in - calls in a few days later and says oh I am sorry, that story by your evidences isn't going to run, I am having problem with editors George Rapp's byline disappears and a new reporter comes on the case who is much more willing to give the editors what they apparently wanted, which was the same guilt presuming, don't bother us with the defense side type of coverage that the rest of the nation al media was doing and when I say the rest, I mean USA Today, The Washington Post although didn't do much, The Los Angeles Times although it got better later, all of the major networks I would say, although they want as bad as the worst news papers, Durham Herald Sun which was shameful throughout, Nancy Grace who was mind bogglingly shameful throughout on CNN, Rita Cosby was pretty bad, Joe Scarborough - pardon - Winnie Murphy, if if it's possible to say that some one is worse, than Nancy Grace - Winnie Murphy would be the one. Now she - I didn't list her at first because she doesn't have her own program but when you need an absolute wacko who is willing to just say dozens of things that are provably false to support the prosecution side of the story because the dynamic of these cable news programs require somebody to report the prosecution side, call Winnie Murphy she will do it for you but the national media ignored largely the evidence for example when the DNA evidence came out that did what the prosecution said would prove innocence on April 10th I am not talking about the private DNA but the state DNA. The New York Times - the new - New York Times reporter on the case Steff Wilson wrote a little story well, DNA defenses as it proves this and that, then he called Peter Neufeld of the innocence project who - who is a great authority on DNA and quoted it him in a way that made it sound like he was saying well this doesn't really prove any thing, not every rape has a DNA. Well I I was it struck me as odd so I called Peter Neufeld, called him through as spokesmen at the innocence project and said I know why did he say that you know I mean that's that's all wrong. Did he know the facts of this case with the women claimed she was raped for a half an hour by three men, three orifices, no condoms, beating, kicking, strangling and no DNA and you doesn't - you are saying it doesn't prove any thing? The answer was that Neufeld has told nothing about the facts of the case by the New York Times reporter and so the question basically to Neufeld was, is it possible that you might some day have a rape that didn't leave DNA evidence? Well sure its possible that not this rape but Neufeld didn't know that and that was not untypical of the way that the media covered the story and from months and months and months they covered it that way, News week which had maybe been too credulous at first to their credit, Evan Thomas and Susanna Meadows wrote a piece in News Week and like June that was the first major media piece tearing the cover off this and showing the proof of innocence David Brooks, the New York Times columnist and Nick Cristoff his columnist have done the same in month or two earlier. Joe Neff a crack investigative reporter for the News And Observer who made amends for its terrible initial story by doing terrific work that completely discredited the story especially a story - a piece he wrote on august 6, so there were good journalists out there, but in the face of all this and while sixty minutes was developing a devastating attack on the prosecution that ran April April October 15th the New York Times does its definitive revisioning of the story on august 25th of 2006, months after any body in the media who want to look for the evidence realized that it leaned strongly towards no rape. Well New York Times' 5600 word article kind of boiled down too well we look at the evidence and you know defense lawyers they kind of play games but and then there are weaknesses in the case but we think it looks like a pretty you know a case you can take trail and not bad case, it was an astonishingly slanted piece of writing and it was also a good example of how while it was littered with a few factual errors even if those factual errors had not been made, the thrust would have been the same and basically it took every piece of evidence that - that it reported a lot of the evidence to defense but it minimized and put them in a context where it few suggested well that doesn't really amount any thing and it took some thing as a probative of a guilt that any one who knew any thing about the case would know perfectly well was not probative of guilt. It's hard to say enough critical things about there coverage you know after the after the spectacular expose in open court on December 15th of the prosecution DNA lab conspiracy to suppress the evidence of the multiple male DNA after that the supreme you know the supreme The New York Times finally started saying "see you know may there is a problem here", but there is a problem long before that. As to the academics, am I doing on time Roger? As to the academics, there are at Duke and I think a lot of other places a cadre of dozens of Duke you can put a number on it Duke 88 of the roughly 500 members of the arts and sciences faculty. Professors who signed an ad in the school paper that was put together on a rush, it ran on April 6 2006 I think the reason it was put together in a rush was the people putting it together knew that the DNA evidence was coming out soon and they kind of suspected that it would innocence and they wanted to get their shots in before that happen. This ad presumed that the lacrosse players guilty applauded the protesters would have been carrying castrate signs outside their house, applauded the protestors who had been nailing to trees, wanted ads with the pictures of most of lacrosse players on them. It depicted the white students at Duke generally as bunch of racists you know which was patently absurd. These are people who are wedded to the to the myth that United States remain terribly oppressive place where women and minorities specially blacks can't get a break and where privileges males are looking for every chance they can get to rape or other wise abuse poor blacks especially females, no body in this group apparently remembered or cared to remember the Tawana Brawley case in New York some which was another fraud by of of very similar racial demographic breakdown and that that didn't slow them down. I would like to to read a little bit just a short passage of what one of these professors said just to give you a flavor of him his name is Grand Farad and if and if I can find it here is some of the things he said in September 2006 on Duke forum he asserted without any evidence that the lacrosse players had a quote "Tendency toward misogyny and arrogant sexual prowess." This was after they had been proved innocent and after they had been, a faculty report headed by the one admirable remember the Duke faculty in all this,James Colemen of the Duke law school that showed that they are they are basically kids who drank too much and other wise were great students and great characters and not racists, not sexists, not bulies. Farad didn't confine his attacks to just lacrosse players. At December September forum he attack the hundreds of Duke students who had registered to vote - there was a vote registration campaign to get rid of Nifong and so he associated them with the legacy of quote privilege oppression, slavery, racism, utter contempt for black and native bodies. This for - this was for registering to vote, you can't invade the right of the people of Durham to choose that they want you interlopes from some where else. Indeed he proclaimed that any duke student who dared to vote against Nifong would be casting his or her vote "Whether it is acknowledged as such as not against women and more specifically against black female bodies" and he accused the most secret racism, now you might think that for that sort of thing, Farad would be kicked off the faculty, well no you don't do that, tenure. You might think that he will be marginalized on a faculty, you might think that he would be criticized at some way or at least that the university president Richard Broadhead might say well his right to say he wants to say but I disagree. No Broadhead never ever disagreed with any of these outrageous statements, you might think that Grand Farad would be a figure of fun. No, he is a hot property. Cornell was very glad to hire him away from Duke and he will spewing his poison at Cornell yet next year. Another of the another of the very worst offenders, Baker his name, was hired away by Vanderbell this was these were in play before any of this happened, it wasn't related to the lacrosse players, but it shows that they didn't just Duke, Vanderbilt was very proud to hire Huston Baker away. And my my colleague K.C. Johnson who did a brilliant blog on this that runs to thousands of pages, his his little headline over the Grand Farad hired by Cornell story is "Go Big Red." I will try and wrap up but the on prosecutorial misconduct, there are reforms I think that could prevent other people like Nifong and I don't think there are many like Nifong. I think there is a fair amount of prosecutorial misconduct in this country but usually about prosecutors who are convinced that the people are guilty and who are to trying to just you know, - trying I think dishonestly to to ice the case and by police who are trying to do that - very rarely by prosecutors who know or have every reason to know that the defendant is innocent but there are some there are some safeguards we could and should legislate in places like north Carolina, Grand Jury reform and elsewhere to prevent this sort of thing. And and I leave that to Victoria, as to the media you can I suppose try and encourage journalist who remember that facts and evidence were supposed to be their coin, in trade the truth is supposed to be their objective and then grinding ideological axes risks embarrassment if not dishonor. To the extremist's academics, what you do about them? There is a lot of them, I had neglected to mention that not one professor on the entire Duke undergraduate faculty, for more than six months ever dissented from the poison spewed by the 88 and by the people like Huston Baker and Grand Farad, why? Because they are terrified, because when somebody finally did do that, chemistry professor named Steve Baldwin denounced the the lynching of these kids, he was called a racist in a letter to the by a colleague in a letter to the school paper and was threatened in a veiled way to have fist fight by another professor within 24 hours and I think the university administration was looking north at what it happened Larry Summers at Harvard and the one way you can be destroyed quickly as the university president or administrator as if you offend these people on the far left because they will not hesitate to call you a racist or a sexist. What you do about them? You can't reason with the extremist, because they live in an alternative universe that is not in which reason is not present. You can't fire them because a lot of them have tenure. You can try to prevent them from multiplying, and what I mean by that is I think the most the I think it's a serious problem in academia because I think the influence of people like the ones I have been describing is spreading like a cancer. Once they get a critical mass in a department, nobody who isn't one of them will ever get hired again in that department or it will only happen with great effort. And I think university trustees, university alumni, the rest of us need to wake up to the poison that these people are spewing and also the nonsense. I mean their scholarship is laughable. It's eccentric. And I am trying to put a halt to it. I think people tend to look away from this and I want to emphasize on that, I am not talking about liberal bias. I think there is liberal bias but that's not what I am talking about, I am talking about people who are almost off the edge, off the left so that they are coming around the other side and joining the people on the very far and the loony bin of very far right. if there is one message that I hope people will take away from this book that I hope they will retain and act upon, it is the universities have a serious problem and it's only getting worse. Thanks very much. Well, thank you very much Stuart for that very colorful synposis of very long and very important book. Here at the Cato institute, we try to bring someone from the other side - in this case of course it is proven extraordinarily difficult at this point in time to do so. There are not many people out there who will rise to the defense of Michael Nifong. But we do have the good fortune to have with us Victoria Toensing who when I invited, had said but I am on Stuart side. And I said well, that's all right. I am sure you will have some comments from your perspective and when I say from her perspective what I mean is that she is your primarily in her past capacity as deputy assistant attorney general in the criminal division of the department of justice during the Reagan administration. But she has had a wide ranging career, she is currently has been since 1988 in private practice. She is a founding partner in the diGenova & Toensing and it is an internationally known expert on white collar crime, terrorism, National Security and intelligence matters. Vickie is a graduate of Indiana university and the university of Detroit law school - among her many services, she has been on assistant US attorney, she has been the chief council for the US senate select committee on intelligence. She has been the special counsel to the US House of Representatives teams to this investigation in 1997, 98. You have undoubtedly have seen her on national television. She co-hosted CNBC's Equal Time and Rivera Live! She is a frequent legal analyst on national television programs and dealing with politics, criminal justice, national security and terrorism, her op-eds have appeared in the Wall Street journal, the Washington Post, New York Times USA today and elsewhere would you please welcome Vickie Toensing. Hey Stuart, I already said, regarding academia, if they want diversity, they ought a higher republican. As Roger says, having been both a prosecutor and a criminal defense lawyer, my role really is to discuss into a proven innocent from the practicing lawyers point of view. Whether the system is broken or better said where it is broken what are some of the ways that we can fix it. the power of the prosecutor is so awesome that it's often said that it is second only to sending people off to war in the way that it affects a person's life the most telling quote the quote and I am going to use it sometime in court. Stuart was from Joe Cheshire - one of the defense counsel where he says that his greatest fear is that the clients might have to endure the worst of all fates for innocent person a trial. Boy if I had been there I have been there as a defense attorney when you know, all the institutions just like in this case, except the academia was not involved. All the institutions that they were supposed to be safe guarding the truth and insuring that that there was integrity for public officials they were all abdicating their responsibilities and again just like in this case, not because of necessarily evil intent but because they had other interests at stake. They didn't converge with what the responsibility should have been to protect the system. Mine was internationally known case, it was limited to the geography and mentality of Wilmington, Delaware. But in a political prosecution against the democratic county executive, the republican US attorney, Colm Connolly went after his potential political rival for governor essentially making state misdemeanors of election law into a federal recon. Okay, so where was the press you know, this system I mean the - my story I am sure can be replicated by lawyers all over the country and looking at all these different institutions. Where was the press? Well, the reporter covering at for the local newspaper had co authored a book with the US attorney, he wasn't going to go against and besides the US attorney's office was the source for all kinds of stories for the local newspaper. Moreover the paper and the county democratic my client county executive were at war because the paper had had to apologize for having run a series of and they had to retract it. about the county executives, expense account expenditures, so there was all this set up with the press. Press wasn't going to be there to help us, how about the judiciary, judges certainly. Well, the US attorney was clever enough to couch the case in such a way that all federal judges in Wilmington, Delaware were conflicted from the case except the one who was his good friend. So how about the local bar? Well the local bar especially in a small town are now no profile an courage, let me tell you besides the prosecutor was theatening anyone who disagreed with him, with a prosecution for perjury, you better take side he told one local lawyer or you will be made to answer. But the just the politics in the local town one of our assignments in representing the county executive was to find a DC law firm to challenge the newspapers continuing harassing of most - many county employees after hours and so they had to stop and we went out and found with the county lawyer the local law firm the DC law firm, a big law firm to take on the county the county local newspaper because no Wilmington, Delaware law firm had the guts to do so. Where was the DOJ supervision by the way or shouldn't there are been some body there be said you don't turn misdemeanors into a RICO? Well the attorney again was very clever, all the adults had left, DOJ, Mike Chertoff, Ted Olson, Larry Thomson had all left and what remained were young supervisors who were allowed fuzzy state law and regulations about campaign rules to be turned in to a RICO. Plus there is one addition of federal law that people should really be aware of, it's a terrible law abused and abused time and time again it's called the deprivation of honest services and I will tell you a little bit about that later. At one point, my husband and I had to face jail to refusing to testify against our client of three years, the made up crime, oh it was hiring that DC law firm that was the crime, made it up but his friend the judge wasn't going to challenge him you know thank god for the third circuit and the wonderful law firm called the Cooper and Clark. We did not have to go to jail nor did we ever have to testify - there were some scary moments and when I asked Stu's beloved New York Times to get interested in the story, Stu, you know what I was told? It wasn't a story unless we were in jail, then they would have had an interest in it and you know what? They didn't say that about Judith Miller when she was just threatened with jail, I don't understand this - yes you know it's very confusing to me. But let me put that kind of context, my federal experience in - show you how a lines for me in reading this wonderful book "Until Proven Innocent" and I look at it and look at the crime I don't do - I don't do that stay cases and I certainly don't do rape cases but I look at the crime of rape and is it pretty basic factual scenario there it - the facts don't get too confusing with all the you know as Stu was recounting and it did get very confusing, but basically its people understand what rape is and it's pretty basic and usually today there is a scientific evidence, somewhat like the finger print. Scientific evidence can pretty well trump just about any thing else that we had in rape cases in the years past without that "he said - she said - the eye witnesses" and all that kind of thing. So it's it was basic and it was the DEA that came to help these students be cleared, but when you are dealing with white collar crime in the federal milieu, except for drug cases, that's basically it's white collar crime in the federal court. Peoples eyes glaze over when you start to talk to them about the facts of a particular case so if I started to tell you and read to you as Stu could do so wonderfully in in a very basic way about well you know the the one of the students had cell phones and there were calls every five minutes, well you cant do that when you are reading regulations upon regulations, you would all fall asleep except that will tell you want factual scenario that will give you a thrust for a the this prosecution that I was talking about and that's regarding the the deprivation of honest services, for one of the charges in the indictment that the justice department approved was that the defendant had taken a person he supervised to some body's house on the way to and after hour Christmas party and they stopped by some body's house and for an hour helped decorate the tree before five o clock, so for that one hour of decorating a tree before the county time clocked, said the day is over the citizens were deprived of honest services, I mean that that's one that you can understand pretty basic is Stu was out lining some of the stuff. But the rest of the charge is trust me were like that, it was just - just wrapped up in misdemeanors statutes that werel very unclear. So what I am what I am trying to say is yes there is a system out there that has some very big issues and it's the much more difficult in a white collar crime environment to attack the facts because they are a little more complicated but I will tell you this Stu did such a beautiful job of pulling out the considerations that lawyers have or confronted with cases like this so I just want to briefly go over because I could just see the thematic coming out and for not being the trial attorney you really understood what what the life is like, that vigorous defense I will tell you in this Wilmington, Delaware case is not the first time my husband and I have played the bad guy roles that you know mere going there and we charge and other lawyers on the team are supposed to be the nice people and the sweet people and you know you kind of work this out together in the in the back room, so when you - this God rest is soul Kirk Osbourne, that was gutsy to take the role and say I am going to go in there, I am going to file a motion to recuse, on evidence that was not quite to the level that they really had at the at the end of the case and I am sure the reason that my husband and I were subpoenaed was to conflict us out of the case, they want to - the US attorney want to get rid of us and if both of us testify and one of us Saturday and the other one said Friday, well so much the better if one of us ended up in jail but it was basically to conflict us out of the case. I had another federal case where classified evidence was an issue and I said to the assisting US Attorney who had told me from day one, he had the evidence to indict my clients that day, but he was just being nice by listening to some of the things I had to say and I said well the reason they had classified evidence is because they had top secret clearances you know it was okay and he said you are wrong they didn't have it, I said no they did have it. He said I am indicting you for perjury and obstruction of justice, they don't have your top secret clearances. Well of course they did have them because I want them to say something unless I had a piece of paper in my hand but you can tell by by taking on saying you are going to be the bad guy because there are many times when some body has to be, you put your self up against Edward Bennett Williams' first commandment which that the lawyer should not go to jail, which was - so put your self in that environment. Now would that assisting US attorney he is still an assistant US attorney unfortunately but at least the the US attorney was wise enough to over rule him and deny him the ability to indict my client in that case. Showing your case, this is always just a dilemma for lawyers in what you do before you're trying to stop the indictment but how much if your case do you show because what will the prosecutors do change the theory once you do and no where was that clearer in your book than the alibi defense. The kid's - he is got every minute down and all of a sudden the rape didn't take 30 minutes, the rape took two seconds you know - change and I just had a case in Washington where I went in with exculpatory key exculpatory information by gosh by the time that indictment came out, there was a whole new theory but the biggest one and you know this goes along with your your theme Stu talking about at why you gave the press a little bit of a pass because it's like - it's the prosecutor saying this had there must be something to it and it's the did I miss some thing and I think if I got I know every thing so the the one scene really got me and I get little choked up about Banyan, I can feel it you know being in that court room and Banyan had mastered the DNA - he dead fight with us too yet too, he had no back ground in science, nothing and he really can tackle this subject, learned it he understood this the theory of it he wrote a motion on it and yet when you are surprised at a hearing and some body is telling well that witness is going to be there and you didn't know it you hadn't prepared it is kind of scary but he was - his Cheshire - his senior lawyer talked him into going ahead with it so he gets up there and he asks first question of the doctor Meehan, who is the bad guy who lied about whether the DNA was - what the DNA lab test where and Meehan comes out with the wrong answer he was supposed to say yes and he said no and I could just feel Banyan like - oh my god, what did I miss. I thought I knew this subject. I missed something you know, because and the prosecutor has all the cards and they only tell you - show a few cards and continue to think that how can I and you know I am looking all these I look at these evidence and I can't figure it out because why does this person going going ahead with this case because this is not making sense to me so it's really a frightening thing from the defense lawyer's view point because you don't want to lose your credibility with the court and go out and you say ah the DNA test is going to just prove my client innocent when oh my gosh what if they are you know, the person touched you know, her at some place just accidently and the DNA is there it's really a scary situation. I would just like to comment about some of these entities and where I think that there is there should be there needs to be some room for improvement. Number one courts and prosecutors should never ever, ever, ever be elected. Okay, I mean think about it, you are sitting in front of a judge and he or she wants you to contribute to his campaign and if you don't what's going to happen. Are you going to be viewed as friendly, the next time you come around with the motion, what does that do to criminal justice system? A prosecutor asking you for money, I think it's outrageous, it just it should never ever happen. And if we study of the states, where there is the most problems, I think we would find it in places where the courts and the prosecutors are elected. The criminal justice system, what about oversight there? I would like to point out something about congress because we just went through all of this brouhaha over the firing of US attorneys and did a US senator call up and say we want you to prosecute this case. Well, you know what? I never saw the press being upset when Chuck Shumar came out and said lets prosecute Scooter Libby. How many times do we say it's okay for the members of congress to come out and demand an investigation? But guess what they never get involved to say you got to stop an investigation. I say we ought to do it both ways You either can come out and ask for investigations but also take responsibility for saying you have to stop these investigations or you don't say anything I would prefer that they not get involved at all in what is an executive decision and the politics should not be involved in in the decision about prosecutions. The State bars and the oversight have done nothing in the Wilmington case - there is there is no basis to even go there. So we stayed away. In the press, I don't know I think we could start by teaching logic at journalism schools with that help because there were just days that when I get phone calls, I just think, oh my god, where did you learn, how to think and you pretty well have to rule out the New York Times as being hopeless, because they have done a study and they say everything they did was okay. Right Stuart? It was all our right. So And the lawyer now I saved my lowest cubicle in in hell for the lawyers who did nothing because you have a responsibility as people in the court in the court system. Why did that woman prosecutor and I - I forget her name right now, but it doesn't matter, who went after the taxi driver for a misdemeanor because he might have been because this taxi driver had corroborated the alibi, now all of sudden he finds himself being prosecuted for an alleged misdemeanor for having driven some woman who a shop lifted, the prosecutor says, Nifong says the tapes will show that he sped off in his cab and it will show that she - and she the shop lifter will say he was involved well you know there was a prosecutor who agreed to try that case and she had to have viewed that tape of the cab which did not speed off - that drove regularly away and the shop lifter herself testified that the cab driver knew nothing about it. Now where was the ethics of that person, why didn't she step forward and say I will not be a party to this? The US attorney in the case I say in Delaware, he now wants to be a federal judge, what are we doing rewarding these people who behave like this and you know at some point may be the white house be smart enough not to nominating but Stu, I I save the most important thing for the lawyers for last and that is right after the law schools show Joe Pesci, My Cousin Vinnie ought to assign your book as required reading. Well thank you Vicki, Stuart wants to give a brief response and we are going open it up to questions to you and the audience and then we are going to have lunch upstairs Stuart - Yes thanks I will be quick, I want to thank Victoria for that eloquent and very generous and educational talk and and and I would like to tell one little story from the book that that resonates with what you said, one thing I - I learned about how powerful prosecutors really are that I hadn't really been sensitive to I have been covering legal issues for a long time until I wrote this book as how much power a local prosecutor in a place like Durham which is most of America has over the local defense lawyers and the local judges, I sort of tell well the defense lawyers are going to fight the prosecutor and the media perhaps understandably when they found some defense lawyers who said that Nifong was an okay guy, he really must be an okay guy they're defense lawyers, well no. I learned if you take on the local DA in a personal way as opposed to just trying to fight him in a trial, he can put you out of business, most criminal defense lawyers - most of their business is negotiating plea bargains with guess who - the district attorney, if the DA says no plea bargains for Kirk Osbourne, Kirk Osbourne is out of business at least if he depends on that juncture and I would like to finish with Kirk Osbourne, he too has great courage and he was an old friend of mine by coincidence took on Nifong much more than any body else did openly, there were differences of strategy he asked that he will be disqualified and attacked him in very forth right and accurate terms, very early in the case. For this he was shunned and treated like dirt by the local judge from that point forward for this he was treated like dirt by Nifong of course but also was threatened by Nifong with being accused of witness intimidation because he had the temerity to try and interview witnesses. Kirk had a Kirk was 64, one of the fittest guys I know former Colorado foot ball player went to the Rosé bowl, he keeled over of a sudden heart attack late last year, I think he had been under some stress.