The N&O published a lengthy profile of Mike Nifong’s career in today’s paper. The highlights of Benjamin Niolet’s front-page story:
1.) Nifong’s ever-changing versions of events continue to catch up with him.
The article’s most important paragraph was the following:
Although Nifong has never heard the woman tell her story, he believes her. He said in court last month that he met with her and detectives April 11 to discuss the judicial process. Nifong said she was too traumatized to speak about the incident. The day after that meeting, Nifong told a judge he was planning to seek indictments.
I strongly suspect that Nifong did hear the accuser tell her story (at least the version that she was offering as of April 11, which differs in dramatic ways from the story that she told on March 14, or March 16, or, perhaps, April 6). But his earlier versions of events left him trapped.
The D.A.’s September 27 comments built on earlier controversies. Nifong previously had assured Judge Stephens that the April 11 meeting didn’t discuss the case, only to see his words contradicted by, of all people, Sgt. Mark Gottlieb in the infamous “straight-from-memory” report. In light of Gottlieb’s claim, Nifong had to develop a tale which would reconcile both his earlier affirmation to Stephens and the Gottlieb report’s veracity—hence the “too traumatized” claim. Nifong, of course, never explained how the accuser could have been too trauamatized to have spoken about the event on April 11, but nonetheless have made reliable ID’s on April 4 or given a statement on April 6.
Niolet, however, has exposed the problem the D.A.’s latest version of events poses. Based on what transpired at the September hearing, two options exist:
- Nifong lied to the court about the substance of the April 11 meeting
- Nifong brought a case that contained massive holes without ever hearing the accuser tell her story.
In version one, the district attorney is unethical; in version two, he’s incompetent.
2.) When Nifong brings weak cases, evidence seems to be accidentally destroyed.
Niolet’s story recounts a 1994 rape case brought by Nifong with weak evidence (though evidence that’s much, much stronger than the Duke case). In that case, as Crystal Mess discovered, the prosecution “accidentally” erased over a portion of an audio recording the defense desired to use as evidence. In the Duke lacrosse case, of course, the Durham Police “accidentally” destroyed police recordings from the night of the incident that defense attorneys had requested be preserved.
3.) The N&O, unsurprisingly, couldn’t seem to find anyone who supported Nifong’s unique interpretation that he lacks discretionary authority on whether to bring this case.
Niolet, correctly, notes, “Even though an accusation is enough, it does not require a prosecutor to pursue a rape case. In general, part of a prosecutor’s job is to use judgment, said Robert L. Farb, professor of public law and government at UNC-Chapel Hill’s School of Government”; Farb stated, “Prosecutors evaluate cases all the time.”
Nifong, on the other hand, asserted on April 11 that “anytime you have a victim who can identify her assailant, then what you have is a case that must go to the jury, which means, in this situation, a jury will get to evaluate the evidence.” [emphasis added]
Nifong, in short, seems to believe (incorrectly) not only that a district attorney lacks discretion on filing a case in which an accuser wants to go forward, but that he must bring such cases even before anyone from his office hears the accuser’s version of events.
4.) Troubling aspects of Nifong’s personality have been apparent for some time.
Niolet’s story goes into greater detail than anything previously published about Nifong’s service in traffic court; or what the New Yorker deemed his “semi-retirement” on the public payroll. According to one traffic court attorney quoted in the article, “Working with Mike, you never knew from one day or the other who you’d be dealing with. He would curse you, scream at you, call you names over nothing.” Why the governor would appoint such an emotionally unstable person to be
Several traffic-court foes pointed out that Nifong became particularly enraged at defense attorneys who didn’t seem prepared. With that background, it’s difficult to explain his behavior in this case, when very strong evidence exists that he and his staff made statements suggesting they hadn’t even read their own discovery file.
Niolet writes, “Although his unpredictable behavior might puzzle some observers of the lacrosse case, it is vintage Nifong.”
In fact, my sense is that Nifong’s behavior has puzzled few close observers of the case. His agenda, in fact, has been quite clear-cut: in March and April, he perpetrated a series of procedural frauds in order to obtain indictments that he needed for political purposes; and he now has little choice but to lurch forward, since dropping the case would increase the likelihood that a state bar ethics committee inquiry will strip him of his license to practice law.
What puzzles me, at least, is why so few voices in
[Update, 8.12pm: Liestoppers provides its typical fine analysis on the article, and John in Carolina correctly points out that Niolet should have stated that Nifong's refusal to consider exculpatory evidence was not a sign of confidence but a violation of the state bar's ethics code.]