Friday, October 27, 2006

Reciprocal Discovery

This case has exposed a wide streak of self-pity in the conduct of Mike Nifong. That habit was on display today as well: attempting to rebuff defense objections that he had been slow in turning over evidence that Open Discovery required him to produce, the D.A. complained that on the question of reciprocal discovery, it's been more than five months and he has never heard anything back from the defense.*

That claim, of course, was demonstrably untrue: he received a notice of alibi defense, coupled with a description of the exculpatory evidence, from Reade Seligmann's attorneys almost immediately after he obtained an indictment against Seligmann. After being reminded of this fact in court today, Nifong admitted that he had, in fact, received this information. To my knowledge, he still hasn't amended his previous statement that he has never read the motion containing this evidence.

Quite beyond this point, Nifong's interpretation of North Carolina's reciprocal discovery statute is--to put it mildly--creative. Under Open Discovery, the DA must turn over to the defense all evidence in the state's file as the state obtains that information. The criminal procedure statute, on the other hand, makes clear that the defense has no such obligation. According to §15A‑905, defense must [all emphasis added]:

(1) Give notice to the State of the intent to offer at trial a defense of alibi . . . Notice of defense must be given within 20 working days after the date the case is set for trial pursuant to G.S. 7A‑49.4, or such other later time as set by the court.

a. As to the defense of alibi, the court may order, upon motion by the State, the disclosure of the identity of alibi witnesses no later than two weeks before trial ...

(2) Give notice to the State of any expert witnesses that the defendant reasonably expects to call as a witness at trial . . . The defendant shall give the notice and furnish the materials required by this subdivision within a reasonable time prior to trial, as specified by the court.

(3) Give the State, at the beginning of jury selection, a written list of the names of all other witnesses whom the defendant reasonably expects to call during the trial.

In short, Nifong's comments this morning suggest that he is unaware of the differences between Open Discovery and defense reciprocal discovery under the criminal procedure statute. Or--more likely--he deliberately misrepresented the distinction in the hopes of scoring points with the press and distracting attention from his delays in turning over evidence as he is legally required.

*--The original post inaccurately stated that Nifong had filed a request for this information. The dangers of blogging on the fly . . .


Anonymous said...


I am wondering if the judge had any comments at all, or if he simply accepted everything that Liefong said at face value. We can see here that we are dealing with a liar and a criminal who needs to go directly to jail (and not pass "Go").

Glad you are there and I look forward to more reports.

William L. Anderson

Anonymous said...

Nifong doesn't know what the defense's statutory discovery obligations are; he doesn't know the restrictions on his own conduct imposed by the State Bar's ethics rule; he doesn't know what's in his own case files; he doesn't have time to read defense motions or review defense evidence; he hasn't spoken to the Accuser or the Accused (despite being the lead investigator on the case) -- is there anything this man DOES know?? Every time I think he can't possibly do or say anything more foolish than he's already said and done, he proves me wrong.

Since Nifong has been acting as lead investigator in the case (meaning his conduct in this regard will not be cloaked with the complete immunity normally afforded to prosecutors), it is clear that he has exposed the City of Durham to tremendous civil liability if the defendants file a Sec. 1983 lawsuit (which seems likely). I wonder if the City self-insures. I also wonder if any of the local media have bothered to inform the local taxpayers just how much Nifong's misconduct could end up costing them.

The Dude said...

I posted on an earlier thread. Immunity is not that important in this context. It helps but apparently this judge is sleeping.
Nifong is the lead investigator. All the defense has to do is call him as a witness. The case is over at that point. He can't be a witness and prosecutor. If he was the lead investigator and spoke to anyone(even the one question he admits he asked the accussed) he has made himself a witness.He has an obligation under Brady(in NJ) to provide all discoverable evidence. Now he is claiming he never talked to anyone or read anything. this is way over the top. The Feds have to step in here soon or the three LAX players are going to own Duke and Durham. the voters there must be real idiots if the would consider electing someone this stupid and incompetent(and that is by his own admissions).

newport said...

I'm wondering the same thing as Professor Anderson. What did this judge have to say about all this? Is this judge no better than the previous Durham judges, as appears to be the case.

newport said...

Nifong is only a witness if he "witnessed" something. It appears that he hasn't, or so he says. "Lead investigator" doesn't mean anything here other than Nifong, in effect, becoming the de facto Durham police chief. This has no bearing other than with regard to immunity issues. The police only get "qualified immunity" as to their official actions. The police chief couldn't be called as a witness if he didn't "witness" anything.

The Dude said...

That is not the only qualification of being a witness. Expert witnesses never saw anything in an actual case but they testify all the time. In all cases the witnesses lists include all members of the prosectuion team and the defense Team EXCEPT the Pros. and the Def. Atty. This is done for several reasons. The pros. team consists of all police and Investigative personnel involved in the actual case in any manner. the defense would be limited to whomever actually did investigation, talked to witnesses, made observations, etc..

in this case the pros. claims he asked a question of the accuser. He is a witness at that point. If the accusser varies at a later point, he is a witness to her answer on than question. This all goes to credibility which would never be disallowed by any judge.
Any competent Pros. or defense attorney has other persons do the work. This is specifically done to 'aviod making themselves a witness'.
The pros. could have questioned the accuser with an Investigator present which could have alleviated this current dilemma.

Another reason for avoiding becoming a witness is sequestration. This type of case will be a definite sequestration case. Witnesses will be advised by the judge they can not discuss the case with anyone while they are awaiting testimony and they can not discuss the case with any other witnesses until the case is concluded or each witness has been fully excused by the court. In this case, Nifong can't even speak to his own witnesses before testimony 'once the jury is enpaneled".
Nifong apparently told the judge(somewhere in KC's comments) that the defense was trying to make him a witness. We know he doesn't understand Discovery and now we know he doesn't even know the basic rules of a first day on the job Prosecutor. Of course he is a witness. he made himself the Lead Investigator. If he set up the process for the line up (photos) or directed same, then he is a witness regardless if he spoke to someone. The Pros. and the defense has to lay a foundation for the testimony they are trying to illict. They are going to ask how the photos line up was planned and who was involved. Mr. Ego will be lucky to be disbarred. He is going to cost the Durham residents several million dollars of the tax payers funds in civil suits.

The Dude said...

i left something out of my rather lenghty post. Sorry.
For exactly the reason I gave, Nifong , as a sequestered witness, can't discuss the case with his own staff. That is the entire point of "not becoming a witness'. I'm really suprised this isn't already in a motion by the defense since nifong is obviously withholding discoverable evidence and using his dual positions to attempt to justify it. If the judge does not make Nifong step aside, he is just as guilty and someone should be looking into the Durham Court(s).
a question for KC:
Since Nifong claims he never spoke to the accusser(except 1 question)
what is the basis for the indictment. it seems to be no crime has been established at this point. Even unethical, Nifong had better come up with something at the last minute or is he waiting until the election is over.

Anonymous said...

KC: Incredibly good reporting today, far better than you would see in The New York Times. Who said bloggers can't report? Citizen journalism is on the rise.

Anonymous said...

OUCH! click on to "Former prosecutor stunned by Nifong's admission today"

Anonymous said...

I'm wondering about the judge too. How can he let Nifong get away with all this? Was he asleep or something?

The WRAL video is excellent. Even local lawyers seem to be turning on Nifong.

Anonymous said...

KC - I'm fairly certain Nifong did file a reciprical discovery request/motion. It was included with with the initial discovery dump on 5/18.