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CNN Saturday Morning News

Mike Nifong on Trial; Emergency Government Being Formed by New Palestinian Prime Minister; Robert Gates in Iraq to See if U.S. Strategy is Working; Computer Glitch Mostly Fixed in Space Station

Aired June 16, 2007 - 09:00   ET

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.

DR. SANJAY GUPTA, CNN CORRESPONDENT: I'm Dr. Sanjay Gupta. Now back to Betty and T.J. with the latest news on CNN.
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UNIDENTIFIED MALE: It was like a sick joke. It's like we were being toyed with, like he was doing it, you know, maliciously, on purpose to us.

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BETTY NGUYEN, CNN CO-ANCHOR, and CNN SATURDAY MORNING: Anger and raw emotion from a former suspect in the Duke Lacrosse rape case. Tears and regret, though, from the prosecutor. We have more testimony. That is expected this hour.

Also, searchers surprised as a missing 5-year-old girl emerges from the woods to find them. Yes, the emotional reunion between the girl and her family. That is straight ahead.

And something we all want to avoid, and that is speeding tickets. Trust me, I've had plenty. We're going to tell you where the worst speed traps are in the U.S. so that you can either slow down or hopefully not avoid them because you should be paying attention and not going so fast. I'm one to talk.

Hello, everybody. From the CNN Center in Atlanta, I'm Betty Nguyen. We want to thank you for joining us today. We have a lot to tell you about. In fact, I am joined by my colleague Rick Sanchez today.

RICK SANCHEZ, CNN CORRESPONDENT, CNN SATURDAY MORNING: Who's now ready to go.

NGUYEN: Here he is.

SANCHEZ: Takes a while sometimes, but here we are. Thanks for covering for me.

It's back to court for Mike Nifong this hour, the embattled North Carolina district attorney facing another day of ethics hearings. The State Bar Association hearing is looking into the way that he handled the way debunked Duke Lacrosse rape case. CNN's Susan Candiotti joins us from Raleigh. SUSAN CANDIOTTI, CNN CORRESPONDENT: Good morning Rick. Well a plan to resign, an apology, and a question of punishment. It is day five in an unusual Saturday hearing in this ethics trial against Durham District Attorney Mike Nifong. During tearful testimony on Friday, Nifong said that he will quit no matter what the punishment might be.

He arrived at the -- for his hearing just a few minutes ago. He faces anything from sanctions to fines to possible disbarment. And for the first time since his case against the three Duke Lacrosse players was dropped, Nifong said yesterday he is sorry.

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MIKE NIFONG, DURHAM DISTRICT ATTORNEY: For the last 14 months, unintentionally, my family and the families of David Evans, Reade Seligmann and Colin Finnerty has been kind of joined at the hip. Everything that affects one of us affects the other. I think that's going to be the case as long as I'm the district attorney in Durham. I think I can't do justice; I can't do the right thing if I allow that to continue. So it is my intention, whether or not -- whatever the decision is for me, to resign as district attorney in Durham.

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CANDIOTTI: Attorneys representing those Duke Lacrosse players call that apology too little, too late, and simply a ploy to save his law license. Now, during Friday's testimony, cleared player Mike Seligmann took the stand, and he talked about how the charges in this case changed his life.

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READE SELIGMANN, EXONERATED DUKE LACROSSE PLAYER: It always felt that way, but at that point, it felt almost like a sick joke, like we were being toyed with. Like he was doing it, you know, maliciously, on purpose to us.

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CANDIOTTI: Now, during the testimony also yesterday, here is something else that happened that literally has rattled and angered the players. During his testimony, Nifong said he still thinks something happened to the stripper that night.

Rick, back to you.

SANCHEZ: What is Nifong going to do, Susan? Is he going to stay in this profession?

CANDIOTTI: Well, not many people think that he will be able to save his law license after this is all over. But this certainly ought to wrap up quickly, and we ought to have an answer to that question possibly as early as today. Things seem to be moving along, and it's very unusual to have a session on Saturday. So it is possible that this panel might make a decision by the end of today. SANCHEZ: All right. Susan Candiotti, thanks so much for bringing us up to date on that.

Betty over to you.

NGUYEN: Well we do have some new developments in the Middle East to tell you about. A new report says the aid embargo on the Palestinian government may soon be over. The Associated Press quotes aides close to Palestinian President Mahmoud Abbas says a U.S. representative told Abbas the embargo could be dropped if a new government is installed without members of Hamas. Abbas fired the Hamas prime minister on Friday. The new prime minister is forming an emergency government right now. All of that while Fatah forces take a measure of revenge against Hamas.

They've been storming more Hamas-controlled buildings in the West Bank, and CNN's Ben Wedeman has more.

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BEN WEDEMAN, CNN CORRESPONDENT (voice over): Fatah gunmen ransack Hamas' media office in Nablus, destruction the theme of the day. Fatah answers Hamas' rampage in Gaza with its own. In the streets below, Fatah fighters warn this is only the beginning. We'll continue to do this until Hamas has been destroyed, says gunman here. This is the law here delivered through the barrel of a gun. Blind rage smashing everything associated with Hamas.

This is a taste of the mayhem to come. Fatah has now taken revenge on Hamas, destroying everything it can, burning their offices, killing their members. This was the first Hamas supporter in Nablus to be killed, 31-year-old Aniz (ph). Relatives say he was grabbed as he left a mosque on Thursday, bundled into a car, and driven away. Mourners accuse Fatah of being behind the killing. Specifically, they blame Mohammed Daclan (ph), who was Fatah's strongman in Gaza before it was overrun by Hamas.

No one is investigating how he was killed, his father tells me. No one is investigating anything. A few hope the carnage will end soon. God willing, this was the last killing, says Nablus resident Abull Mohammed (ph) at the funeral, and we'll be brothers again. This anger on both sides, it doesn't look like the bloody conflict between Hamas and Fatah will be so easily buried.

Ben Wedeman, CNN, Nablus on the West Bank.

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SANCHEZ: Meanwhile, Defense Secretary Robert Gates is seeing for himself whether this new U.S. strategy in Iraq is working. He's in Baghdad right now meeting with Iraqi leaders and U.S. military commanders. The visit is his fourth to the war zone since taking over the job in December. Gates says more time is needed to gauge the effect of the U.S. troop increase in Iraq.

(BEGIN VIDEO CLIP) ROBERT GATES, DEFENSE SECRETARY: The full surge actually only began a few days ago. We began the process of building up our forces some months ago, but the Fifth Brigade as part of the surge really only entered the fight within the last few days. And so I say, while I indicated yesterday that I think we'll see some trends and be able to point in some directions by September, the full impact of the surge is really just beginning to be felt.

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SANCHEZ: Gates, by the way, is visiting a city all but shut down by a security lockdown. Strict curfew is still in effect in Baghdad and other cities after a mosque bombing there in Samarra. That was Wednesday. That's what started the whole thing. Authorities are hoping to prevent even more violence or any revenge attacks.

Betty.

NGUYEN: Well new this morning, from North Korea, word that U.N. nuclear inspectors have been invited back to monitor the shutdown of the country's nuclear reactor, and that is according to North Korea's official news agency. Now, this is move comes just hours after millions of dollars in frozen North Korean funds were released. North Korea agreed in February to shut down its reactor and bring in U.N. inspectors in exchange for emergency energy assistance.

SANCHEZ: A potentially dangerous computer glitch. Now mostly fixed aboard the International Space Station. Four of the station's six computers were up and running. The Russian cosmonauts are turning on some of their more critical systems this morning.

Good news also for the shuttle crew during a space walk. Astronaut Danny Olivas was able to staple down a section of the crimps thermal heat blanket that we've been telling you so much about ever since the liftoff. Fixing a problem that raised concerns over the shuttle's entire safety during reentry.

NGUYEN: Hey, that's not bad when you can just staple it down and you're good to go, right?

SANCHEZ: They say they actually had to find the staples. They really didn't have something that they could use. So they had to create a gizmo to be able to do something like this.

NGUYEN: I would imagine it's got to be pretty specialized to handle that kind of heat.

Well let's take it over to Bonnie Schneider. Speaking of heat, some places heating up today. Looks like a heat wave in some parts.

BONNIE SCHNEIDER, CNN METEOROLOGIST: You're absolutely right, Betty. It is warm, and we're looking at the threat for flooding. Across Texas, the threat for flooding actually continues, the flood watch goes straight through tonight. Here's the reason why. We have an area of low pressure into Texas. This is really bringing about a lot of rain. You can actually see the counterclockwise flow around the low. Look at the movement of the precipitation moving up from the Gulf where moisture is abundant coming into Houston. We're going to see heavy rain across all of Texas today. This watch box indicates an area of severe weather we're watching in terms of possibly a strong thunderstorm.

But some of the heaviest rain is just north of Dallas right now into Canton. If you're driving to Shreveport, you're going to encounter heavy downpours and frequent lightning strikes. You saw already we have reports of over 5,000 lightning strikes in the past hour alone in this red box you're going to see here.

Coming back to our map, we're not only watching for a lot of rain in Texas, tropical moisture interacting with the front right over Florida is making for a huge rain maker for south Florida today. In fact, take a look at this as we slide further off to Florida. You can see the rain all along the Keys up towards Miami-Dade, and then into Broward as well. You'll start to see that rain all along the treasure coast later on this afternoon as well as it rides on up to that region.

Now, temperatures this morning, if you're just waking up in the northeast, it's 60 in Boston. Look how warm it is in Chicago, it's 74 degrees. Temperatures in Chicago will climb all the way up to 91 degrees. And, Betty, you mentioned the heat. Here it is, 109 today in Phoenix, and 106 in Las Vegas. Very hot conditions there.

NGUYEN: It is hot today there. Kind of starting to feel it here in Atlanta. Although we're not in the hundreds yet, thank goodness. I'm sure it will come, though.

SANCHEZ: It's the humidity, though, right?

NGUYEN: Right.

SANCHEZ: It's always about the humidity, Bonnie.

NGUYEN: Thank you.

SANCHEZ: Rescue workers are calling this one a miracle. A 5- year-old girl reunites with her family. They were afraid that she had died, but she survived an ordeal on her own. We've got her story. It's ahead right here on SATURDAY MORNING.

NGUYEN: And technology takes us to Rome Circa 328d. That's right, as the eternal city is there, and you have never seen pictures like this before. Stay tuned for this.

SANCHEZ: And we are taking you now live to the closing arguments. This is at Attorney Nifong's ethics hearing. Let's go ahead and dip into this and listen to what they're saying.

DOUG BROCKER, PROSECUTOR: His most important duty and responsibility is to seek justice, not merely to convict. This responsibility, which is the most fundamental to our entire system of justice, mandates that the defendant be accorded procedural justice and that guilt be decided on the basis of sufficient evidence presented in a court of law, not in the media.

This responsibility to justice in North Carolina requires the prompt disclosure of all relevant information to the defendant, particularly any exculpatory or impeachment information. For the criminal justice system to work in North Carolina, this responsibility to justice demands that a prosecutor be absolutely honest and accurate in all representations made to the court, defense counsel and others. As a member of a self-regulating legal profession, Mr. Nifong has the obligation to make honest, full, fair, and most importantly, true responses to the state bar and this commission.

The clear, cogent, and convincing evidence presented over the last four days demonstrates that Mr. Nifong engaged in a systemic abuse of prosecutorial power and discretion in the Duke Lacrosse cases, that systematic pattern of abuse began from his very first involvement with the case and continued up through this hearing.

Through this systematic abuse of trust, power, and discretion provided to district attorneys in North Carolina, Mr. Nifong did not act as a minister of justice, but a minister of injustice. He was a minister of injustice, first and foremost, to the three innocent Lacrosse players as he prosecuted and their families. But also to the other players and their families, to the actual victims of sexual assault, to the reputation and integrity of prosecutors and lawyers throughout the state, and finally, to the entire system of justice in North Carolina.

In these cases, Mr. Nifong engaged in the systematic pattern of prosecutorial power and discretion in two principal and overriding ways. First, from the very first involvement, Mr. Nifong began his charge forward toward condemnation and injustice. Again, from his very first involvement in this case, Mr. Nifong began to weave a web of deception, which has continued up through this hearing. We have alleged violations of Rule 3.6 regarding pretrial publicity and Rule 3.8-F concerning the special responsibilities of a prosecutor. Although even in his testimony yesterday, Mr. Nifong has never definitively and conclusively admitted any violations of these rules. Whether he committed such violations is not really genuinely in dispute.

The State Bar clearly has met its burden concerning violations of these rules. The violations do not require intentional conduct with respect to extra judicial statements. The issue with respect to those extra judicial statements are the severity of the violations and whether Mr. Nifong made them knowingly and intentionally and his intentions and motives for doing so. The State Bar does not have any burden to prove either of those issues.

However, they are important in evaluating this entire case and considering his intentions and credibility on remaining violations. State Bar has also alleged that some of his statements were not only improper under the rules, but also false or misleading. These statements can be considered as separate rule violations or as an aggravation in evidence such as intentional misconduct. As you know, 3.6-A prohibits extra judicial statements that lawyer reasonably knows will have a substantial likelihood of materially prejudicing an adjudicated proceeding. It's important to keep in mind, in evaluating these issues, that the prohibitions contained in this rule are designed to preserve and protect the Sixth Amendment Constitutional Right to a fair trial by an impartial jury as noted in comment 1 to that rule.

Exactly 100 years ago, Supreme Court Justice Oliver Wendell Holmes, addressing the right to a fair trial wrote, "The theory of our system is that the conclusions to be reached in the case will be induced only by evidence and argument in open court and not by any outside influence, whether of private talk or public print."

Of course, Justice Holmes' comments were made long before the invention of the broadcast media and the Internet, which pose significant additional risks to this constitutional right if the necessary prohibitions and limitations on extra judicial comments are not strictly observed, or as in this case, are flagrantly disregarded.

Comment six to Rule 3.6 notes that the prejudice varies with the nature of the proceeding and notes that criminal jury trials will be the most sensitive to extra judicial speech, as in this case. That same principle is recognized in 3.8-F, which directs the criminal prosecutor to refrain from making extra judicial comments that have a substantial likelihood of heightening public condemnation of the accused.

UNIDENTIFIED MALE: Let me ask you a question right there. I think there's a legal issue that we have to deal with that appears to have been raised in one of Mr. Nifong's responses. I'm not sure if he's still pressing that issue upon us, but I think we need to address it. And that is that Rule 3.8-F, as you just quoted, prohibits the prosecutor from making extra judicial comments that have a substantial likelihood of heightening public condemnation of the accused. No now, one could make the argument that, at the time the statements were made, there was no one specifically that was accused. So what's your argument as to how that particular provision applies here?

BROCKER: Well, the accused, I think it doesn't necessarily have to be heightening condemnation when somebody is actually accused. And in this case, I don't think there's any -- I think the evidence is undisputed that the comments that Mr. Nifong made before people were indicted clearly led to condemnation of the accused once they were indicted. They had been publicly identified, the suspects in a non- testimonial order, had been publicly identified as the Duke Lacrosse players when those comments were made. And clearly, you can see from Mr. Seligmann's testimony in his first court appearance as an accused, it clearly had that impact.

And so I think it would be an absurd result -- I'm not suggesting that you're suggesting that, but if it were to be interpreted to say that, until somebody is actually charged, the prosecutor can make any and all comments he wishes and that cannot be a violation of the rule. I think that would be a very unfortunate outcome, and I don't think that's what the rule requires.

UNIDENTIFIED MALE: Let me just ask you. Is there any legal authority from -- I know there's not for North Carolina. But from any jurisdiction construing this revision, which I believe it an ABA model code provision that would give us guidance on that particular legal issue?

BROCKER: I don't know the answer to that question, Mr. Chairman.

UNIDENTIFIED MALE: Well, I'll just tell you. My interpretation to the extent I've thought about it so far is consistent with what you have said. That is that there is significance to the use of the word "accused" rather than indicted or defendants, and that it should not make a difference as to whether anybody has actually been indicted for this provision to apply.

Beyond that, it does seem a little bit problematic where you have essentially a class of people rather than individuals at that point who are accused, but I am satisfied from the evidence that what we are dealing with is a set of people, that is, the lacrosse players at the party on that night, were all in some sense accused.

And therefore, I would conclude that the provision applies as a matter of law. And if you've got a different argument, the defense wishes for a different argument or has other authority to that effect, I'd like to hear it because I think this is a legal issue of first impression, and I want to get it right.

BROCKER: I think the only other point I would make on that, Mr. Chairman, is that it would be particularly inappropriate in this case to have such a ruling where Mr. Nifong's office was the one that actually -- was the body that actually entered a non-testimonial order certifying to the court that there was reasonable cause to believe that it was these individuals that may have committed a crime and then to get up and argue that he's not bound by the rules because these people haven't actually been charged yet.

Comment five to Rule 3.6 sets forth some specific but nonexclusive examples of the types of statements, which are presumed to have a substantial likelihood of materially prejudicing an adjudicated proceeding. Several of the specific examples are based on other important constitutional rights and guarantees in criminal cases such as a suspect's right to silence, right to counsel, and the presumption of innocence. And in the Duke lacrosse cases, Mr. Nifong, through his extra judicial statements, repeatedly trampled upon those essential constitutional rights in numerous respects.

These fundamental constitutional principles underlying these rules and specific comments certainly must have been known to Mr. Nifong as a career prosecutor, and that's why I take the time to point them out because that is directly relevant to his intent in this case. There is certainly no way, as a 28-plus year career prosecutor, he could not have understood that the comments he was making were going to or likely or certainly affect these defendants' constitutional rights.

The fact that he immediately embarked upon an unprecedented local, state, and national media barrage in obvious violation of these principles and rules is very instructive to his intent. And not only in making those statements, but also to other things that he did in this case subsequently. He repeatedly made statements concerning silence or failure or refusal to make statements. Several of his statements, of course, were directed at the players' exercise of their Sixth Amendment right.

The previous one was directed at their right to silence. The most egregious example is set forth in example 64, where he says, one would wonder why one needs an attorney if one was not charged and had not done anything wrong. Essentially, in those statements, Mr. Nifong is suggesting that the only reason somebody not charged with a crime would hire an attorney is because they are guilty. Of course, another good reason to hire an attorney would be if you are unjustly accused or charged or worried about being so. As a career prosecutor with 28 years of experience, he certainly understood that comment and the implications of it.

He knew he could not make such a comment in the jury trial, so he certainly cannot be making it in the press. And when confronted with this obvious truth, Mr. Nifong, over a year after he made those comments, finally acknowledged that that would be improper. In the past, Mr. Nifong has attempted to justify these statements by asserting that no suspects were identified when he made those statements, and that's the issue, Mr. Chairman, one of the issues you were hitting on. Your question was really about the accused, but he has asserted that they were suspects. As I pointed out, the NCO in this case from his office, from whom he learned about this case, identified these people as suspects.

I suggest to you that argument is disingenuous. You can't go get a court order identifying somebody as a suspect and representing that they have reasonable cause and then say, but they're not suspects when it comes to my improper judicial statements -- extra judicial statements.

He also attempted to claim that his comments were a request for assistance in obtaining evidence and information. This exception merely permits a prosecutor to note that they are seeking information about comment -- about an alleged offense and certainly not the kind of disparaging comments that he made about the lacrosse players and their alleged stonewall of silence and calling them a bunch of hooligans.

Mr. Nifong also made statements regarding his certainty that a crime had occurred, which is specifically prohibited under Comment 6 -- I mean, Section 6 of Comment 5. That particular provision is based on the presumption of innocence of a defendant. A prosecutor neither in court, nor certainly not out of court, cannot express his personal opinion or belief or certainly the fact that a crime did occur, which Mr. Nifong did repeatedly in this case.

UNIDENTIFIED MALE: Let me ask you about that. It's certainly improper to express before a jury one's personal opinion simply about anything, but what about in public to say, I believe a crime occurred. What's the source of that -- just that statement being improper?

BROCKER: As the district attorney in Durham County, Mr. Nifong has a stature unlike many other people, and having him publicly express an opinion about whether or not a crime occurred, he certainly can hold opinion, and we would expect him to hold an opinion about --

UNIDENTIFIED MALE: Yeah.

BROCKER: About what happened in this case. But that's an entirely different matter. It's not the -- issue is not whether or not he was convinced or whether or not he had no doubt, but as the appointed district attorney in Durham County, having him go out and say, as you heard Mr. Bannon say ...

NGUYEN: All right. You've been listening to the prosecutor Doug Brocker in the Nifong ethics hearing. Closing arguments, as you have heard, are under way now to determine the fate of Nifong, who has already said that he will step down as district attorney. They are going to decide whether he will lose his license, his law license there, among other issues. Closing arguments still under way. We are going to hear from Nifong's side as well a little later this morning.

Right now we're going to take a short break and come right back. Stay with CNN.

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NGUYEN: Here's another live look at the ethics hearing under way right now. Closing arguments in this hearing to determine in Nifong will be disbarred.

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