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Pressure Mounts on Mike Nifong

This is a partial transcript from "On the Record," December 27, 2006, that has been edited for clarity.

GRETA VAN SUSTEREN, HOST: Simmering outrage in Durham, North Carolina, after a rape charge against each of the three Duke lacrosse players was dropped. Many are now commanding the D.A. also drop the sexual assault and kidnapping charges.

Congressman Walter Jones is one of the first to turn up the heat on Durham D.A. Mike Nifong when he asked the feds to investigate Nifong for misconduct. But before that Congressman Jones received a letter from one of the attorneys of accused lacrosse player Collin Finnerty. Congressman Walter Jones joins us by phone.

Welcome Congressman, and can you explain this — the lawyer from — the letter from the lawyer for Collin Finnerty? Did that have any impact on your decision to write the attorney general of the United States?

REP. WALTER JONES, R-N.C.: Greta, no, it did not. In fact, I had called my staff in Washington, D.C., you know, we were home for the Christmas break. I had called my staff in Washington a couple days and made a request that we work on a letter. We called the office of the advisers to the Congress as to what is possible, you know, corrected action to take that is before we received the letter from the attorney.

I have never read the letter. I've not seen the letter. I don't even have it in hand. My decision was made on a fact of justice and injustice. And as I continue to watch news reports both on your show and the news (INAUDIBLE) in North Carolina, and I saw this case continue to fall apart that this D.A. had no evidence that should have lead to an indictment of these young men and I saw the injustice and I said enough is enough, quite frankly.

VAN SUSTEREN: All right, in writing your letter to the attorney general, has he responded or given you any indication that he is going to investigate in any way at any time.

JONES: Well, he did on last Saturday. He was on Brian Wilson's show, and I saw that myself where he said that he had received the letter and they were considering the request of the member of Congress. He did not say yes or no. But, I have had two telephone conversations with an assistant to the attorney general and he has told me that they have taken my letter, both letters, two, as you know, and given it to the civil rights division to evaluate and I am asking for an opportunity to meet with the attorney general when we go back in two weeks.

VAN SUSTEREN: Would you like the attorney general to wait until the end of the case or do you want him to step in now and investigate?

JONES: Well, I think he should step in now, quite frankly. He can do the investigation, Greta, without having any interference with the case. And, as you know, they've dropped the rape charges and very quickly. I want to read to you from the December 23 editorial in the Raleigh, North Carolina paper. And it says "His first statements made to the television reporters with national audience included ironclad assurance that a rape had been occurred and the defendants were guilty." I mean, this is just one violation of the constitutional rights of these three men, one after another, and the revelations keep coming out each and every day.

VAN SUSTEREN: Do you worry that this has happened to other defendants in North Carolina by this prosecutor?

JONES: Well, see, that, I don't know, because obviously this is a situation that has been in the public for over 10 months now. And I think we all go back to the election of Mr. Nifong and the fact that he just could not wait to make these announcements that these men were guilty, calling them "hooligans," and in their opinion, denied their due process. And so to me, I'm a non-attorney, but to me there's just one violation of the constitutional rights of these three young men and I believe sincerely that the attorney general of the United States of America in time will agree with what my request is and that is for an investigation.

VAN SUSTEREN: Congressman, thank you, sir.

JONES: Yes, ma'am, thank you.

VAN SUSTEREN: The heat's been ratcheted up on D.A. Mike Nifong with further demands he dropped the other two charges against the three lacrosse players. Let's bring in our panel. In Tampa, criminal defense attorney Jeff Brown; in San Francisco former prosecutor Michael Cardoza; here in Washington, criminal defense attorney Ted Williams.

Michael, the request for an investigation — federal investigation, your thoughts on that?

MICHAEL CARDOZA, FMR PROSECUTOR: Well, the letter comes from the attorney. The congressman said he didn't read it, so I've got to believe him. I think he did the right thing.

VAN SUSTEREN: Does it matter anyway — does it really matter anyway whether it comes from the lawyer or the congressman.

CARDOZA: No.

VAN SUSTEREN: Doesn't matter. OK.

CARDOZA: No, it doesn't make any difference at all. I think he's doing the right thing. I mean, Nifong has made some statements. I'll tell you that I sit back and think as an ex-prosecutor for 15 years, you prosecute that way there? Think of what he said. He said that the accuser in this case, because she made identifications, he has an obligation to go forward with the prosecution. No, he doesn't.

What he is to do as the prosecutor, especially the district attorney, is to look at all the evidence in the case and see if he can step before the jury and prove guilt beyond a reasonable doubt. And there's certainly enough facts to show that this accuser doesn't know what she's talking. She has given, what, three or four different stories? So Nifong is clearly wrong when he says that.

Then he goes on, Greta, and says, you know, some people make mistakes and photo IDs, so what I'm going to do is wait until we get in the courtroom. What, Mr. Nifong, you've never heard of a live lineup? You could have run a live lineup right from the get-go. But no you want to wait until they get in the courtroom. Who's sitting at the defense table? The three defendants. Who do you think she is going to identify?

VAN SUSTEREN: All right, let me bring in Ted and Jeff.

Ted, your thoughts on this? I mean, I guess I'm now sort of — I'd like to see a lot of the cases, if they're this sort of this happen hazardly brought in the state of North Carolina. I think of the people who can't afford good lawyers to.

TED WILLIAMS, CRIMINAL DEFENSE ATTORNEY: You know, and that is always a concern.

VAN SUSTEREN: I might say that probably a lot of really good, decent prosecutors in North Carolina.

WILLIAMS: Oh, absolutely and I'm sure there are. But if you've got an out-of-control D.A., you don't know what he's done over a period of time. But when we look at what is going on here, the question mark is simply should there be a complete errand (ph) of all of the evidence? Not the evidence that we believe we know of, the evidence that we may not know of. It is my firm belief that there is a need for a trial and, look...

VAN SUSTEREN: You know what, wait a second. Ted, I would agree with you, but you're missing a huge piece of this. He has never even sat down with the accuser to find out what she — I mean, that's where you start. I mean that's…

WILLIAMS: Let's start here.

VAN SUSTEREN: We're not in late December, Ted.

WILLIAMS: Let's start the night by what Walter Jones should have done. Let's call for Nifong to recuse himself to be kicked off of this case and to be given fresh eyes to look at this case...

VAN SUSTEREN: That's not a bad idea.

(CROSSTALK)

All right Jeff — Jeff — Jeff.

WILLIAMS: ...or dismiss it.

JEFF BROWN, CRIMINAL DEFENSE ATTORNEY: Ted, this is where I disagree with you from the beginning.

WILLIAMS: Sure.

BROWN: First of all, we know all the evidence. This is an open file case.

WILLIAMS: How do you know all the evidence, Jeff?

BROWN: Because the rules state he's supposed to give us the evidence.

WILLIAMS: The dichotomy between suppose and then what you get.

VAN SUSTEREN: Then is he really in trouble if he gave you that.

(CROSSTALK)

BROWN: Then you're making my argument for me. If he's not following rules on discovery, this is just one more in a long line of things...

WILLIAMS: Sure, but get rid of him, Jeff, get rid of him and let fresh eyes look at the case.

VAN SUSTEREN: North Carolina won't, they elected him. They voted him in November, two months ago.

WILLIAMS: We know what prosecutorial misconduct is.

BROWN: And this is it. And Ted, here's one thing the viewers have to understand, as a defense lawyer, I'm an advocate for my client. But a prosecutor is not an advocate for the accuser, his job is completely different than mine. His job is to seek the truth in justice. He's not an advocate like I am for my client. And this is what Nifong doesn't understand and this is why somebody needs to go in there and start this investigation.

CARDOZA: Jeff, you're spot on with that.

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