Exclusive Interview With Duke Lacrosse Case Lawyers Joe
Cheshire and Brad Bannon
In January 2007, Metro Magazine published an interview with
the family of Collin Finnerty, one of the three Duke lacrosse defendants. In
that far-ranging discussion, held in their New York home, Collin’s parents,
Kevin and Mary Ellen Finnerty, talked about the impact of this experience on
them and their five children. The Finnertys also talked about the lack of
safeguards in North Carolina law that allowed this injustice to go unchecked
for far too long.
Since that time, Collin Finnerty, and his co-defendants,
Reade Seligmann and David Evans, have been cleared of all charges. In a widely
publicized press conference held in April 2007, North Carolina Attorney General
Roy Cooper declared the Duke Three “innocent,” a step beyond the “not guilty”
the public and the defendants expected. Cooper further stated that the young
men had been the targets of “a rogue prosecutor” — Durham District Attorney
Michael Nifong, who was disbarred in State Bar proceedings in June and forced
to leave office.
The state legislature has responded to the gaps in the
system of checks and balances identified by the Duke lacrosse case by approving
several bills addressing criminal procedures — most notably establishing new
processes for police lineups. But this begs the question of how it was possible
that a case without foundation could drag on for over a year in the country’s
10th most populous state — and in one of its most literate regions. Why
couldn’t Nifong be stopped? And even more importantly, why would the North
Carolina Conference of District Attorneys introduce legislation limiting Open
File Discovery only one day after the Attorney General’s press conference?
For answers, I met with Raleigh’s Joe Cheshire, the lead
attorney for Duke lacrosse defendant David Evans. Cheshire, a fifth generation
lawyer, was selected by his professional peers in 2006 as one of the top 100
lawyers in the state. That same year, he was inducted into the American College
of Trial Lawyers. Joining us was Brad Bannon, now best known by the national
press as the “DNA buster,” the young attorney who spent days deciphering the
tangled DNA evidence that exonerated Finnerty, Seligmann and Evans, while
catching DA Nifong in his own net.
The law offices of Cheshire Parker Schneider Bryan &
Vitale are housed on Raleigh’s downtown Fayetteville Street in a worn structure
with nice bones and a cache of memories. The reception area is decorated with
personal plaques that recognize The Best Lawyers in America, and a campaign
poster that reads: “For President, Franklin D. Roosevelt.” On the coffee table,
a children’s book, Just Say Thank You is mixed in with the magazines.
Cheshire, Bannon and I met in Cheshire’s office, wallpapered
in green linen and the personal artifacts of a successful career and marriage.
For Cheshire and company, the Duke lacrosse case isn’t just about issues with
the NC grand jury system or rogue prosecutors or tainted identification
procedures — it is about the far more fundamental issue of open discovery.
Open File Discovery
In October 2004, the NC legislature passed an Open File
Discovery law that required prosecutors to give defense attorneys everything
they had in their case files — DAs no longer had the right to decide what the
defense would receive. Police officers were also obligated to give what they
had to prosecutors. And that information too was passed on to defense
attorneys. Cheshire and Bannon were part of a small team of defense lawyers
that wrote that law and managed it through the legislature.
Before 2004, an earlier compromise on the issue of open
files was reached in death penalty cases, requiring prosecutors to share
evidence before a defendant could be executed. “That gave a small window into
prosecutor’s files,” said Cheshire, “and it was shown dramatically that
prosecutors in death penalty cases were not giving defense lawyers evidence
that the clients were innocent, couldn’t have committed the crime, or that the
crime happened in a way that would not have qualified for the death penalty.”
In other words, said Cheshire, “They were abrogating their responsibility to
see that justice was done. DAs were putting winning ahead of justice.”
The Gell Case
Over the next seven years, this peek into the files of
prosecutors would lead to the overturning of an average of one death penalty
case a year. The most dramatic was the case of Alan Gell. Cheshire was appointed
Gell’s lead attorney after Jim Cooney and Mary Pollard of the Death Penalty
Resource Center contacted him with witness statements not seen by the defense.
It was this case that further cemented the professional bond
between Cheshire and Bannon, the intense, boyish-looking younger attorney.
Bannon was first introduced to the firm as a Campbell University Law School
research assistant and clerk in 1997. Cheshire — casually comfortable in his
persona of the bearded Southern lawyer, camouflaging an innate intelligence and
a strong interest in defending the rights of the accused with a
just-sitting-on-the-porch-sipping-iced tea friendliness — teases the younger
lawyer about his resemblance to actor George Clooney. But observing the two
together is like watching a well-played doubles match:
“How many statements did they find in that Gell file, Brad?”
Bannon: “Seventeen.”
Cheshire: “Yes, 17 statements that had never been turned
over to the defense that showed that these 17 people had seen the deceased alive
at a time when Alan Gell was in jail, and so he could have not killed the
deceased…”
Bannon: “And he remained in jail until the body was found…”
Cheshire: “So it was impossible that he killed the deceased,
and yet Alan Gell spent nine years on death row.”
The original prosecutors in that case said in their own
defense that they hadn’t read the case files. The State Bar accepted their
explanation, and Gell was acquitted in his second trial. The case was tracked
in a series by News & Observer reporter Joe Neff, which gave rise to the
Open File Discovery bill in the legislature.
This new law led to “a transparency in the system of
justice, which is what you are supposed to have,” said Cheshire. “It’s an
important doctrine that the Duke case has finally shown to people: It is a
prosecutor’s job to see that justice is done.” This causes a real dilemma as
the political system tends to re-elect a winning prosecutor, or in the case of
Durham DA Nifong, a district attorney who steadfastly defended false charges in
a case that was receiving national headlines.
“The playing field is still not level (even with the Open
Discovery Law) because prosecutors still get to pick the judge they want to try
a case in front of. It’s like Mike Krzyzewski or Roy Williams picking what
officials they want and what day they want to play the game. We are the only
state in the US that has DA calendaring,” said Cheshire. “They have enormous
power.”
An Arrogance Of Power
The latest effort by the North Carolina Conference of
District Attorneys to roll back Open File Discovery took place in this year’s
legislative session in a move that Bannon labels “an arrogance of power.”
Cheshire explained: “You talk about a strange moment. Brad
and I were at the press conference on April 11 watching three young men — who
were, and always were palpably innocent — who were finally being recognized as
innocent because a prosecutor cheated. On the next day, Thursday, Brad and I
were at a meeting at the Bar Association with the executive committee of the
DAs — seven or eight of them sitting across from us telling us how they were
going to roll back open file discovery because they should be the one who
determines what we should get and what we shouldn’t.” Cheshire shook his head
in disbelief. “And the next day, Friday, I was in Union County defending
Jonathan Hoffman who was put on death row because the prosecutors cheated in
every way they could possibly cheat. … It’s astonishing.”
“They sold it as some necessary endeavor to protect
confidential informants,” said Bannon. “That’s not what it was at all.”
The two have been influential in working out the compromise
that has now been signed into law. Ultimately, both sides agreed that
prosecutors would disclose to defense attorneys any contradictory statements
made by witnesses. In this draft, the defense attorneys also agreed to the
prosecution’s shielding of witness social security numbers and the identities
of confidential informants, unless the court ordered the prosecutor to release
them. Otherwise, Open File Discovery remains intact.
“It was a Trojan horse, is what it was,” said Bannon.
“Yeah, a Trojan horse,” said Cheshire.
Prosecutors Respond
Peg Dorer, the director of the North Carolina Conference of
District Attorneys, acknowledged that the timing of the proposed amendment to
Open File Discovery was unfortunate. “We’d been working on it for a while
before that.” According to Dorer, district attorneys had seen issues early on
with the 2004 legislation. For example, the lack of protection for witnesses
had led to a reduction in tips to Crimestoppers. And even casual hallway
conversations by prosecutors had to be recorded and given to defense attorneys,
making it “nearly impossible” to maintain full compliance.
Dorer also said that the DAs’ association had attempted to
intercede early on in the Duke lacrosse case. Within a week after charges were
brought, “every DA was saying the Durham DA was talking too much,” said Dorer.
On a couple of occasions, according to Dorer, senior DAs talked privately to
Nifong about options for resolving the case. “Nifong wasn’t listening.”
Willoughby — A
Notable Exception
Cheshire can get worked up talking about prosecutorial
hijinks. He’s spent his career working with defendants in cases at all levels
of the justice system, including the Supreme Court. Cheshire recognizes that
not all district attorneys put winning re-election above seeing that the legal
system works fairly and efficiently. He’s quick to point out that Wake County
DA Colon Willoughby has always been open and transparent in his dealings with
defense attorneys.
Willoughby’s take on Open File Discovery is pragmatic: “If
each side knew what evidence the other had, two good lawyers should be able to
assess that evidence, and in some cases, save the time and expense of going to
trial.”
The Wake County DA also recognizes how expensive and
time-consuming Open File Discovery is to his office. He mentioned a recent case
where the file included 19,000 pages of discovery. “We had to pay somebody to
copy and number every page. Still, something could be missing and you wouldn’t
know it. We’re still working with 1980s technology,” Willoughby said, his
frustration showing.
“We should just be able to scan the file and put it on
disk,” he said. “The technology is out there — it is efficient and cost
effective.” The money has been appropriated for the upgrades, yet the DA’s
office has yet to receive the funds from the Administrative Office of the
Courts (AOC).
Grand Jury Issues
In addition, as Kevin Finnerty, father of Duke defendant
Collin Finnerty, pointed out nearly a year ago, there is no written record of
what is said in North Carolina’s grand jury proceedings.
“The grand jury system in this state is a joke,” said
Bannon. “The day of the lacrosse indictments, there were 82 indictments in 96
minutes. And there is no duty to provide exculpatory evidence.” Clearly, with
that kind of time crunch, coupled with no pressure to produce evidence, and no
written records of the proceedings, there exists the possibility that anyone
could be indicted in this state.
Willoughby feels that providing transcripts for grand jury
proceedings would not fix the problem. “That’s like saying you have the
measles, so let’s take a picture and put it in the file. … You’re still going
to have the measles.” Willoughby suggested that a more thorough review by the
legislature may be needed to look at how the grand jury process could be
improved.
Another concern of the Finnerty family was the fact that
there was no oversight, no accountability — no chain of command for a wayward
prosecutor. Yet, there is a statute in this state that allows any citizen to
file a complaint against a district attorney. The Senior Resident Superior
Court Judge must hear the case or assign it.
And there was a citizen complaint filed in the Duke lacrosse
case. The judge, Orlando Hudson, chose to continue the case, deciding to let it
play out, rather than immediately complying with the applicable statute.
And where was the State Bar, the governing body for all
attorneys, when this case was languishing without momentum?
“The State Bar doesn’t want to be the referee in an ongoing
case,” said Cheshire. “They rightly held their fire. The State Bar acted the
fastest in their history in this case.”
In his press conference, Attorney General Cooper mentioned
proposing legislation that would give power to the state Supreme Court when it
is clear that a DA is out of bounds. The only legislation passed this session
on this issue, however, has fewer teeth than Cooper’s proposal. The new law
allows legislators to remove a district attorney or judge only after they have
been disbarred.
“There are bad and misguided people in all professions,”
said Dorer. “He (Nifong) wasn’t following the rules we had to begin with.”
LACROSSE PLAYERS MOVE
ON WITH THEIR LIVES
As the Durham DA’s own legal troubles began, the former Duke
lacrosse defendants and their families began to rebuild their lives. David
Evans, who graduated from Duke just before he was indicted, went to work on
Wall Street. Reade Seligmann announced his plans to attend Brown University,
where he will play lacrosse. In July, Collin Finnerty announced that he would
be joining the lacrosse team at Loyola University in Maryland where the coach
can request that Finnerty be granted an extra year of eligibility. (The entire
Duke team was granted an extra year of eligibility due to the loss of their
2006 season.)
Duke University, surprisingly, was on Collin’s short list
for the fall school term. It is now common knowledge that Duke made a financial
settlement with the young men and their families, as well as their fired former
coach, Mike Pressler. According to Kevin Finnerty, where would Collin continue
his education, and will you be suing Mike Nifong? Were the top two questions he
was asked.
“As many as 10 schools called to say, ‘We’d like to have you
here,’ to offer a scholarship, something like that,” Kevin said of his son’s
choices. Collin had always maintained that he’d prefer to return to play
lacrosse with his friends at Duke. After the disbarment of Mike Nifong, and
Durham Mayor Bill Bell’s public commitment to delve more deeply into the
actions of the Durham police department, his parents were somewhat reassured
about their son’s safety at Duke — a major concern for them.
This past lacrosse season, Collin volunteered as an
assistant coach at his old high school in Long Island. “The coach actually
wrote me a letter,” said Kevin, “and said he should do this professionally,
he’s so good.” The coach told Collin’s parents “how much the kids look up to
him, and how good he was with them.”
“We are very proud of Collin,” said Kevin. “He’s a great
kid.”
Lingering Questions
Require Leadership
Kevin and his family have lingering questions about how
their son became entangled in one of the nation’s most high profile cases of
the year — and why Police Chief Steve Chalmers was missing in action the entire
year. “The Durham police department needs radical changes in leadership and
protocol,” said Kevin. “Just like you have a rogue prosecutor, I think you can
have rogue policemen, and that can happen anywhere.”
And about Durham’s internal review of their police
department, Kevin said, “I think it is a farce. They are giving themselves
their own report card.
“We are not being judgmental on the people of Durham,” Kevin
continued. “My guess is that the majority of people in Durham are embarrassed
by how the district attorney conducted himself and how the police continue to
conduct themselves. This shouldn’t reflect poorly on the people of Durham, but
it certainly reflects poorly on the leadership. For the mayor to stand up and
ask for an objective review of what has gone on here, that is a great first
start,” Kevin said. “Finally someone is stepping up and showing leadership, and
it is long overdue.”
On July 19, just one day before the Durham Police Department
would be called on to answer for their actions in the Duke lacrosse case, Jose
Lopez, assistant police chief in Hartford, CT, was named the new police chief
of Durham. He will replace retiring Police Chief Chalmers.
Growing Up Fast
Despite the seriousness of the allegations, Kevin said that
many people supported the Finnertys and the other families throughout their
ordeal. Collin’s girlfriend of four years remained steadfastly committed to his
innocence, as has her family. “To have a college-aged daughter, and to have her
boyfriend become a national headline. … There are a lot of people who would shy
away from that and not want their daughter to be associated. Yet, they know
Collin, and they never wavered that he couldn’t, and wouldn’t, do something
like this.
“Collin is a gentle giant. He’s not a fighter; he’s never
been in trouble his entire life. Obviously,” said his father, “that is not the
way he’s been portrayed.”
The Finnertys have learned far more about the North Carolina
justice system and its limitations than they ever wanted to know. They have
also learned who they can trust. As for Collin, his father says: “A year ago,
Collin was 19 going on 17. Now he’s 20 going on 30.”