This is a partial transcript from "On the Record," December 26, 2006, that has been edited for clarity.
GRETA VAN SUSTEREN, HOST: Representative State Representative Stephen LaRoque added fuel to the fire in Durham by putting more pressure on DA Mike Nifong last week. He demanded a change in state law, so a prosecutor can be held accountable for misconduct.
Joining us in North Carolina, a state representative, is Stephen LaRoque.
Welcome. Welcome, Representative.
STEPHEN LAROQUE, R-NORTH CAROLINA STATE REPRESENTATIVE: Good evening. Thank you.
VAN SUSTEREN: Representative, what do you want done? What is this lawyer proposing?
LAROQUE: What I'm proposing is that we allow the state's attorney general, who is elected by all eight million people in North Carolina, to be able to investigate and, if necessary, criminally prosecute DAs that behave in this type manner. To willfully...
VAN SUSTEREN: All right, when you say — when you say this type manner, what specifically is rubbing you the wrong way on this?
LAROQUE: Withholding the exculpatory evidence about the DNA lab, just — when I saw that on your show about a week-and-a-half ago, it infuriated me. And I think that that type of behavior by any DA needs to be addressed, and needs to be addressed on a level, I think, that — from the attorney general.
VAN SUSTEREN: All right. How — how do we tell if he was simply negligent, incompetent, or did it deliberately, because there is a big difference about — within those?
LAROQUE: Well, based upon what I have read and heard, to me, it was deliberate, that he had told them not to release the information. To me, that's deliberate. And, so, I think that there should be consequences for any DA that acts in that — in that manner.
The district attorney is very well respected, is someone with a great deal of power. And, so, we have got to be able to trust him.
VAN SUSTEREN: I tell you what bothers me about this — and I have said it before — is that there are so many good men and women across the country who serve as prosecutors every single day, doing, you know, a good public service for the rest of us.
And then we call into question this DA's conduct. I mean, I'm disturbed that he wouldn't even look at the physical evidence by Reade Seligmann to show that, you know, he wasn't there at the time that this supposedly happened.
What is sort of the feeling in North Carolina among your constituents about this — this action down in Durham?
LAROQUE: Everything that I have received, either phone calls, e-mails, personal contact, has been on the side of the gentlemen that have been charged.
And they think that the — the prosecutor is basically out of control, and that something needs to be done. And I have gotten numerous e-mails since I was on your show last week from folks from all across not only the state, but the country and the world. And they think that something needs to be done. This puts a negative light on the state of North Carolina. This is not the way we administer justice in North Carolina. And we need to send a message.
VAN SUSTEREN: When you say, they don't administer justice, I will tell you something else that bothers me about North Carolina, while I'm on — on the — I'm getting busy doing this, is that you have state grand juries. Yet, you don't bother them recorded, transcribed, either by tape recording or transcripts, which, frankly, I had never heard of until I heard about your state system in North Carolina.
What about that?
LAROQUE: Well, that's probably something we should look at. In fact, I was talking with another legislature today, who happens to be an attorney. I'm not one. But — but we talked about different things. And we said that perhaps what we need is a study committee put together, so that we can bring in different things that have happened in the past, this case being one of them. We had one gentleman that was on death row where there's claims that a prosecutor withheld evidence. We need to take a look at all of these things, and see what needs to happen in North Carolina to make the law, so that people will believe in our system here again.
VAN SUSTEREN: What about your colleagues in the state legislature who are lawyers? What are they saying about this system? Because, certainly, they are aware of the North Carolina system about the grand juries, and, certainly, they have experience in the courtroom, might have views on DA Mike Nifong, and how is he handling this.
LAROQUE: Well, so far, the ones that I have spoken with have — have said that they don't believe the grand jury would have indicted, had that information about the — the DNA evidence been presented. And, so, I think that's something...
VAN SUSTEREN: And let me — let me just stop you right there. We don't know if it was presented or not, because, in North Carolina, you don't keep a record of it. That's the problem, is that we have no idea whether...
VAN SUSTEREN: ... or not — whether or not it — we — the grand jury even knows that the three — there was no DNA from the three connected to the body of the accuser.
LAROQUE: Well, Greta, that — you are making a good point. And, perhaps, my fellow legislators will take that into account and do something about it in this upcoming session.
VAN SUSTEREN: All right. Representative LaRoque, thank you very much for joining us. Good luck, sir.
LAROQUE: Thank you.
VAN SUSTEREN: What are the realistic odds that North Carolina will change the state law and DA Mike Nifong investigated for misconduct?
Let's bring in our panel, Durham attorney Woody Vann, former Westchester County district attorney Jeanine Pirro, and criminal defense attorney Ted Williams.
Jeanine, the issue of misconduct, you know, it's so often leveled against prosecutors, never particularly sticks, maybe not warranted. I don't — you know, but, in this instance, is this prosecutorial misconduct? If so, point to it.
JEANINE PIRRO, FORMER DISTRICT ATTORNEY: Well, you know, Greta, I mean, what you said before is so clear. And that is that there are so many DAs across this country who take their job seriously, who make decisions based upon the evidence.
What we have here is a prosecutor who not only talked about not releasing the DNA that was exculpatory for these three defendants. But he actually told the head of the lab, who testified under oath, not to divulge that information, which violated the lab's own procedures.
And, so, what we have got here is a prosecutor who didn't just forget or have an assistant DA who forget to give someone a piece of paper. You have got something here that is akin to collusion. And it's very disturbing.
And I think that what we need to have, so that there is confidence in the criminal justice system in every state in this country, is the ability to have prosecutors, who have prosecutorial immunity, when they go beyond the pale, when there is a malicious prosecution, that there can be some liability, whether it is, you know, financial or whether it is something where they are sanctioned by the state bar, by the DAs association, or handled or looked into by the state attorney general.
VAN SUSTEREN: All right, well, let me ask Woody a question about your procedure down there. Woody, Representative LaRoque just said that he might be real interested in having your grand jury proceedings, the record kept of them, like they are in the federal system and I think virtually every other state. I don't know any other state besides North Carolina that doesn't keep a record of what the grand jury is told or not told.
But he thinks it might be a good idea to transcribe them, keep a record. What do you think about this?
WOODY VANN, DURHAM, NORTH CAROLINA ATTORNEY: I have no objection to that. I think it's probably a good idea, so long as they are kept under seal, and only — only released upon — upon a motion, and an in camera review by a judge, in the event someone believes that there has been some error or — or — or misuse of the grand jury system.
VAN SUSTEREN: Woody, Mike Nifong said he wasn't going to try this in the press anymore, and that he wasn't going to talk to the press at all. And then he sat down for three hours with The New York Times, and basically laid out, I think, his exit strategy in the first week of February.
Why do you think he did that? Why do you think he sat down for three hours to talk to The New York Times?
VANN: Well, that's a good question.
I think he — he wanted to find an avenue that allowed him the broadest range of information disclosure to the public, and, at the same time, not — not subject himself to a continued amount of questioning by local — by local — by local reporters. I don't know exactly why, but I think he wanted to get a message out in the broadest possible sense.
VAN SUSTEREN: Ted, he said in this article that, if she can't make the identification of the three in court on February 5, the — I think he telegraphed that he is going to dump the case.
TED WILLIAMS, CRIMINAL DEFENSE ATTORNEY: You know, you have used the word exit strategy. I use the word cut and run.
It is without a doubt — I read that New York Times article. And I believe that Nifong is setting himself up to get out of this case. And, now, just think about what he is saying.
The girl, the accuser — and I didn't mean to say girl — but accuser is going to be in court. And she is going to make an identification in court. These boys have been over every television medium that you can think of. And I'm sure, at some stage or another, the accuser has seen them.
VAN SUSTEREN: But she is going to be asked about the procedure of when she made the identification last April.
VAN SUSTEREN: That's the problem. And, if that is constitutionally suspect, and the fact that Mike Nifong only used a universe of lacrosse players — she couldn't have gone wrong when she did her picking last April. That's the problem. That's not constitutional.
WILLIAMS: And — and you're absolutely right. Now, what will happen? And I believe that the judge is going to throw out that identification, because I think it was really flawed in the manner in which Nifong and the police department conducted the investigation down there.
VAN SUSTEREN: Then it's over.
WILLIAMS: I think it's all over. I really believe that there is an exit strategy to get out. It's all over, to be candid with you. It shouldn't be, but I think it is.
VAN SUSTEREN: Jeanine, over February 5?
PIRRO: I don't think there is any question but that it will be over on February 5. I have said all along this case will never go to trial, that Nifong will use the — the alleged accuser — or the alleged victim as the reason.
He did it to drop the rape charges, when, all of a sudden, he says, oh, she can't be sure that a penis was used, when, in reality, she gave the statement the day of the alleged rape three days later in a handwritten statement, and, as far as we know, testified in the grand jury that there was a rape with penis.
VAN SUSTEREN: All right, let me — let me — let...
PIRRO: And now he's using it as an excuse to drop it.
VAN SUSTEREN: Let me ask you one question, Woody, and then I got to go.
Woody, Nifong says that the defense is conducting a character assassination of him. Are they?
VANN: Well, I think they are probably making a great deal of — of some things that probably aren't as extreme as they would like to be. But, unfortunately, a lot of what he is — that — that he is having to deal with, he brought upon himself.
And, Greta, I will say, I agree with you. I think you have got about a 10-day window, either before or after that hearing, or — or the birth of the child, whichever comes first, where you may see some action in this case that may cause — that may bring it to a close. That would be the — the right window, and would bring appropriate timing, and could use it an as an exit strategy, saying that the baby being born, in conjunction with the weakness in the case, and her inability to be able to proceed would — would allow, as graceful an exit as possible in what has become a very ungraceful case.
VAN SUSTEREN: And — and I hope that, if the case is dismissed by DA Mike Nifong in February, that we continue to review and look at this, because, frankly, the fact that he would not meet with Reade Seligmann's lawyer to go over the evidence of what Seligmann — Seligmann could have avoided indictment altogether. He had proof where he was.
And Mike Nifong didn't — apparently didn't care, got an indictment. And at least we know that's the Seligmann story, at least for the last eight months.
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