Trial by fury

Lawyers for Duke lacrosse players accused of rape prove top legal talent doesn’t need a courtroom to win a case.

By Edward Martin

It’s an overcast afternoon in May 2006, the sky the same gray as the stone facade of Durham County’s jail. Joe Cheshire has picked the site carefully. He wants a dramatic backdrop for the 30 or more television cameras facing him, along with scores of newspaper photographers and reporters, but he’s uneasy. He grips a lectern crammed with microphones and squints at the crowd.

Since the night in March when a black stripper claimed that three white Duke University lacrosse players raped her a few miles from here, media coverage has been frenzied. Cheshire represents one of the players and has become spokesman for the others. He’s about to flout the wisdom of the words on a framed cross-stitching that hangs in his Raleigh office. “Clients are like fish,” it says. “Neither would get into trouble if they kept their mouths shut.”

His client, David Evans, isn’t likely to generate sympathy in a state where work boots outnumber wingtips. A prep-school product, he came to Duke from Washington, where his father is a corporate lawyer and his mother a lobbyist. Yesterday, he had graduated. Today, he had been indicted on charges of sexually assaulting and sodomizing the stripper, a single mother working her way through nearby N.C. Central University. Members of the lacrosse team had hired her and another woman to perform at a beer bash.

Cheshire nods. “These allegations are lies,” Evans begins. “They will be proven wrong.” He speaks four minutes. “I have done nothing wrong, and I have told the truth from Day One.” Cheshire had given the young man his talking points — no crime occurred, we’ve cooperated with police — but even he is impressed with his client’s earnestness. “There wasn’t a mother in America willing to believe they were guilty after that.”

The moment becomes pivotal in the court of public opinion. The defense team believes millions of minds must be changed for the defendants, each facing 30 years in prison, to stand a chance. “By mid-May, we were representing the three most widely hated kids in this nation,” says James Cooney III, the Charlotte lawyer representing Reade Seligmann.

Media reports based mostly on one source — the district attorney — had created caricatures easy to despise: The players were spoiled, misogynistic bullies running wild. Information leaked by lawyers, whether defense attorneys or prosecutors, is nothing new. But DA Mike Nifong had ramped up the rhetoric. He had called the students hooligans and demonstrated on national TV how they had allegedly held the victim in a chokehold. He was convincing.

“I said, ‘Wow! Those silly little bastards. What the hell did they do something like that for?’” recalls former journalist and press critic Hodding Carter III, who was an aide to Lyndon Johnson and Jimmy Carter and now is professor of public policy at UNC Chapel Hill. But on the jailhouse steps, a transformation began. “By the end of the day, Cheshire and the defense were just rubbing Nifong’s nose in incontrovertible fact.”

For 11 months in 2006 and 2007, much of North Carolina and the nation were gripped by a legal drama that some even said overshadowed the O.J. Simpson trial more than a decade earlier. “We ran into the perfect storm of the early 21st century news story,” Cheshire says. “This was about race, class, gender and the criminal-justice system. It was about crisp sound bites and sensationalism.” All fed by the insatiable demands of a 24-hour news cycle.

Nifong, who did not respond to requests to be interviewed for this story, may have failed to appreciate what he was up against. In balloting for last year’s Business North Carolina Legal Elite, Tar Heel lawyers selected Cheshire as the state’s best criminal-defense attorney. Wade Smith, who represented Collin Finnerty, won the previous year. Cooney, who took over as Seligmann’s lead attorney after Kirk Osborn died of a heart attack, took the title this year. Cheshire’s partner Brad Bannon, who played a key role in uncovering evidence that crushed the state’s case, is a member of the 2007 Legal Elite in two categories: criminal law and lawyers under 40.

Like most top defense lawyers, the three senior members of the team were skilled at working the press and exploiting every mistake the prosecution made, inside and outside the courtroom. Cheshire would emerge as the players’ public face. Scion of four prior generations of Raleigh lawyers — all named Joe Cheshire — dating to Andrew Jackson’s administration, he is better known for keeping the downtrodden off death row than for defending the privileged. “The time Joe devotes to indigent clients is really impressive,” says Richard Rosen, a UNC Chapel Hill law professor and a founder of the North Carolina Center on Actual Innocence. Cheshire estimates a third to a half. “He’s passionate about it and really cares about protecting people.”

Alan Gell was one. Sentenced to death in 1998 for the murder of a Bertie County man, Gell was a small-time crook. He supposedly shot Ray Jenkins during a robbery on April 3, 1995. The first jury believed he did it, but Cooney and Cheshire, who joined Gell’s appeals pro bono, didn’t. More than a dozen witnesses had seen Jenkins alive after April 3, and Gell had an airtight alibi. He had been in Maryland in jail on a car-theft charge, and prosecutors knew — or should have known — that. They had withheld evidence to gain a conviction, the judge ruled during an appeal. Gell was acquitted during a 2004 retrial. Close to a dozen similar cases have been overturned in North Carolina in the last decade. Many bear Cheshire’s imprint.

His victories have not endeared him to prosecutors in general or Nifong in particular. In 2004, largely because of the Gell case, the General Assembly passed open-file discovery rules, requiring prosecutors to share evidence with defense lawyers. Opponents included many law-enforcement officials and the North Carolina Conference of District Attorneys.

The lacrosse case, though, would take on strikingly personal tones. Defense lawyers who met with Nifong say he would mockingly refer to “Joseph Blount Cheshire the Fifth,” and during one meeting — they were asking him to consider exculpatory evidence for the students — say he blurted, “You can tell that fucking Cheshire to go to hell.” In a profession of faux civility, such an outburst was startling. “The truth is,” Smith says, “Mr. Nifong held intense feelings toward Joe. He made it clear at every opportunity that he despised him.”

In April 2005, Gov. Mike Easley had appointed the longtime assistant prosecutor to replace District Attorney Jim Hardin, whom the governor had named a special Superior Court judge. “You had a guy regarded as pretty much the standard-issue professional career prosecutor of no great reputation as a genius but a competent professional,” Carter says. “When he came out firing all guns, that made a lot of people, including me, say, ‘Well, if ol’ Mike is doing this, he must have a hell of a case.’”

Nifong, a Wilmington native who graduated from UNC’s law school in 1978 and was now facing his first election, had confronted Cheshire as an assistant DA. “He thinks I was born with a silver spoon in my mouth,” Cheshire says. “My spoon wasn’t silver. My family was mainly preachers doing indigent legal work. The truth is, he’s a bully and I called him out.”

Not that Cheshire had walked to school barefoot. His parents sent him to Groton, the prestigious Massachusetts prep school. Graduating in 1966, he then earned a bachelor’s in history from UNC Chapel Hill and in 1973 his law degree from Wake Forest University. After four years as an Army intelligence officer, he returned to Raleigh and joined a law firm. At 29, he was appointed a special prosecutor and oversaw the conviction of the Wake County sheriff and some of his deputies on corruption charges.

Cheshire started his own firm in 1978, and as his career unfolded, he cultivated relationships with media members. Vulnerable defendants are press favorites, and Cheshire, like Cooney and Smith, snatched them from death row’s door. Defense lawyers often lose — the best he can do for many clients, Cheshire says, “is to cut their losses” — but he did it with flair that grated on prosecutors. In defending a client accused of shooting two men to death at a 2004 N.C. State University football game, he told jurors the young man had experienced a jailhouse conversion like that of John Newton, the slave-ship captain who wrote “Amazing Grace.” He got life, instead of the death penalty.

Still, the lacrosse trial would strain Cheshire’s media ties — initially, much of the coverage portrayed the students as guilty — and tarnish his reputation as protector of the poor. “They began calling me racist. It was stunning to watch the liberal faculty at Duke, the NAACP and others exulting in the same abuse of power that’s been used against poor people in our justice system for years.”

The defense lawyers point to the coverage of The News & Observer as an example. They contend that the Raleigh paper initially relied heavily on Nifong and Durham police sources without questioning their motives. Nifong was facing stiff opposition in the Democratic primary. A headline over an interview with the alleged victim that ran 12 days after the party declared, “Dancer Gives Details of Ordeal.” While Cheshire, Cooney and Smith say they were trying to keep the case from exploding into a spectacle, John Drescher, the N&O executive editor who was its managing editor at the time, blames their initial silence. “There was a one-sided discussion going on. Could we have done better at ferreting out the other side? Yes. But at least in the beginning, this case was tried in the court of public opinion, and only one side was talking.”

As the summer of 2006 unwound, Nifong escalated the media trial. He gave more than five dozen interviews, including one with CBS’ 60 Minutes in which he said the students’ “daddies can afford expensive lawyers.” The statement held an element of truth. Cheshire estimates legal fees for the three at “certainly more than $2-3 million.”

Gene Roberts, a Pikeville native, is a former New York Times and Philadelphia Inquirer editor who won the 2007 Pulitzer Prize as co-author of The Race Beat: The Press, the Civil Rights Struggle and the Awakening of a Nation, a book about covering the movement in the South. “[The case] was about race, but certainly not totally.” In fact, it became a chilling revelation of how politically motivated prosecutors can abuse power and how outcomes for the monied often differ from those of the poor. Cheshire concedes that. “Money makes a difference in the justice system,” he says. “If these boys had been poor African-Americans, or even poor white boys from the mountains, the chances of anybody paying attention to them would have been almost zero. They’d have been forced to take a plea.”

Nifong repeatedly suggested that the high-priced defense team proved his point, that the whole matter was one of privilege preying on poverty, played out with clear villains and an innocent victim. “The cases I’ve been involved in almost always involve creating stereotypes,” says Rosen, the law professor and adviser to the North Carolina Center on Actual Innocence. “The difference is, in my cases, they’re usually young African-American males.” As Nifong built his case in print and on the airways, his stereotypes were easy: Rich, racist white boys rape struggling black, single mother.

Nearly two months before the courthouse-steps gamble with Evans, the lead lawyers had tried to head off a media storm by getting Nifong to stop making inflammatory statements. “It seemed to egg him on,” Cooney says. One of Cheshire’s moves in particular failed, leaving him furious. In a private letter dated March 30, 2006, just over two weeks after Crystal Gail Mangum told police she had been attacked, Cheshire warned Nifong that he was violating legal ethics by pronouncing the players guilty. The day after he received the letter, Nifong demonstrated for MSNBC reporters how he said the students had choked Mangum during the rape.

Seething, Cheshire called a press conference in his Raleigh conference room. It was jammed with reporters. “You people are writing and talking lies,” he said, shaking his finger at them. Then he silently cringed. “I remember thinking, the last time I saw somebody do that was when Bill Clinton pointed his finger at me and the American public and said, ‘I did not have sex with that woman.’ I said to my wife that night, ‘My god, I hope those boys are as innocent as I think they are.’”

Underlying his rage were larger, pent-up issues focused by the glare of nonstop cable-television news, news-magazine deadlines and newspapers trying to cling to dwindling circulation. “The truth is, the press’ business is to try to get as full a picture of reality as we can, using about any kind of source we can,” Carter says. “On the other hand, virtually everything about how lawyers, cops, judges and prosecutors act is circumscribed by very clear laws and canons of ethics that are enforceable.”

In and out of the courtroom, ethics rules governing the relationship between lawyers, judges and the press are tightly drawn. They forbid prosecutors from making prejudicial statements against defendants. Bar rules put similar restrictions on defense lawyers. But Nifong had exposed his flanks. “Once he did that, it’s open season for defense lawyers to do whatever they have to do to re-level the playing field,” Cheshire says.

Nifong refuses to discuss his motives — “I have made mistakes in the prosecution of these cases,” he admitted to a judge in July during a hearing in which he was found guilty of criminal contempt of court — but Rosen believes that he was, among other things, attempting to prejudice potential jurors. “The reality is, if we’ve got a duck for a client, we all want ducks on the jury.” In racially divided Durham County — about 40% of the 247,000 residents are black — Nifong’s tactics also clearly played to black voters as he faced the election, which he won. “The contempt that was shown for the victim, based on her race, was totally abhorrent,” he had told one television interviewer.

While the district attorney waged his media campaign, the groundwork of Cooney, Cheshire, Smith and other defense lawyers was bearing fruit. Using the 2004 law they had lobbied for, requiring prosecutors to open their evidence files to defendants, they forced Nifong to release 1,844 pages of DNA reports from a lab that tested semen found in Mangum’s body. Cheshire’s young partner, Bannon, piled the reports on a conference table in the firm’s office. The DNA evidence failed to incriminate the players — the attackers, Nifong told interviewers, could have used condoms — but scrapings from one of Mangum’s false fingernails left at least a slim possibility that Evans had assaulted her.

“Brad bought a DNA textbook on Amazon.com, read it from cover to cover and sat in that conference room for 41/2 days,” Cheshire says. “Brad, by sheer will power, uncovered what amounted to a criminal conspiracy to convict these guys.” He found that tests by the lab Nifong had hired, Burlington-based DNA Security Inc., had ruled out all of the lacrosse players but found semen from several other men. That led Cheshire’s side to accuse Nifong and the company’s former lab director of conspiring to hide evidence.

In December 2006, the defense lawyers began hammering on the findings to the press. The coverage forced Nifong to drop some charges. The publicity led the State Bar, which governs lawyers’ conduct, to accuse him of violating ethics rules in his own dealings with the press, committing “dishonesty, fraud, deceit or misrepresentation.” The following month, N.C. Attorney General Roy Cooper wrenched the case out of the DA’s hands. When juries decide that, during a trial, the state has failed to prove its case, they return a verdict of not guilty. In April, Cooper declared the three defendants “innocent.”

The TV trucks with their tall pole antennas are gone, and on a quiet, shady street next to the stone wall that surrounds the Duke campus, city construction crews patch potholes. The white frame house on Buchanan Boulevard where the lacrosse team partied is quiet. But the dispute is likely to drag on in civil courts, as plaintiffs sue Durham police, Nifong and the DNA lab, seeking $30 million. This case, too, could become a media spectacle. Seligmann has hired Barry Scheck, who helped defend O.J. Simpson. Brendan Sullivan Jr. and Christopher Manning, who defended Oliver North in the 1987 Iran-Contra scandal, will represent Finnerty and Evans.

As a criminal lawyer, Cheshire won’t be involved. But most legal authorities expect the debacle to produce legislative and legal efforts to head off repeats of what the lawsuit calls “one of the most chilling episodes of premeditated police, prosecutorial and scientific miscount in modern American history.” Cheshire agrees. The case left him with an uneasy feeling that can’t be wrapped in snippets of videotape or buried beneath bold headlines. “People got to see justice in real time up close, and it wasn’t working.” Maybe in the end, though, it did.

On a September morning, a week after a Durham judge found him guilty of contempt of court for lying about the DNA evidence, Nifong walked up the front steps of the Durham County jail, where nearly four months earlier, Cheshire had gambled on letting Evans face the press. The former prosecutor was there to serve his day-long sentence. Reporters pressed around him. This time, he had nothing to say.

 

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