Yesterday’s long overdue announcement that Mike Nifong has bowed to overpowering pressure—as well as legal realities—and recused himself from the case poses three sets of questions.
What’s Next for the Case?
The Special Prosecutions Division of the AG’s office will consider Nifong’s request. The office could do one of three things:
1.) Reject Nifong’s request, which would effectively kill the case. In theory, the
2.) Accept Nifong’s request, and prosecute the case. To win in
The chances of Special Prosecutions taking the case to trial were never high, but were not insignificant. And the attorney general of
3.) Accept Nifong’s request, and dismiss all charges. This option always seemed the likeliest, which is why Nifong has so bitterly resisted handing the case over to a special prosecutor.
At this stage, it is virtually inevitable. With his decision to dismiss the rape charges but retain sexual assault and kidnapping, Nifong has now based his entire case on the accuser’s December 21st tale—a version of events that defies laws of time, space, and motion; relies on the “magic white towel” that can make some people’s DNA vanish while leaving retaining others’; and contradicts virtually every piece of evidence in the file.
Pursuing a case based on this version of events would amount of suborning perjury. It seems inconceivable that any ethical prosecutor would do so. As Jim Cooney, Reade Seligmann’s lawyer, remarked, “I think we’re all delighted that we’re going to have objective and competent prosecutors reviewing this case. We look forward to cooperating with those prosecutors fully and completely in bringing this prosecution to an end.”
That could take some time, however. As Jim Coleman informed the N&O, "The new prosecutor should do the kind of thorough investigation Nifong should have done to determine whether there is any basis to go forward," rather than engage in a rush to drop the charges.
Had Nifong turned the case over to a special prosecutor on November 8, it might have had a chance of moving forward. In the post-Linwood Wilson world, it has no such chance.
Many factors appear to have come together to explain Nifong’s decision.
1.) The Official Version. According to an article by Duff Wilson, who has served as Nifong’s unofficial propaganda minister for the last several months, Nifong “decided he had no choice but to hand off the case because he faces a conflict of interest with ethics charges pending against him for his public comments on the case.”
Of course, Nifong has known for more than two weeks that the State Bar will try him for ethics charges. His claim that he waited to make the request until he could have a sit-down with an accuser with whom he claims never to have discussed the case doesn’t pass the laugh test.
That said, the ethics filing probably did have one effect—it forced Nifong to hire an attorney, David Freedman, thus expanding his circle of advisors beyond the Troika (Cy Gurney, Linwood Wilson, and Victoria Peterson) whose guidance has proved so disastrous in recent months.
2.) The Real Version. Thursday’s defense motion exposed this case, once and for all, as a fraud. As Jim Coleman observed yesterday, the new version of events suggested that “These people are almost criminal. It’s making a mockery of the system. It’s like Nifong is mooning the system. It’s contemptuous.”
3.) The State Bar’s Next Meeting. The Bar meets next week, where it could consider filing additional ethics charges against Nifong, presumably for entering into an intentional agreement with Dr. Brian Meehan to violate
With Nifong off the case, the Bar surely will feel less pressure to move ahead with these allegations, at least right away.
4.) Other District Attorneys [updated, 12.01]. Additional reporting, apparently by David Barstow, has added considerable detail to the originally posted Duff Wilson account. According to the Times, several district attorneys met with Nifong on December 19 and urged him to recuse himself from the case, leaving him "stunned and subdued," according to friends.
The concern of his colleagues? That state legislators were looking at this case of an example of why the power of prosecutors needed to be regulated more closely.
5.) Timing. Nifong has exhibited a consistent pattern of releasing unfavorable news late on Friday. The first DNA tests? Handed over to defense attorneys after 5pm on a Friday. The decision to drop the rape charges? The Friday before Christmas. This decision? The Friday before a three-day weekend.
6.) Fear. This week came the first significant discussion of behind-the-scenes events when Nifong was making these unethical decisions, when his former campaign manager, Jackie Brown, spoke publicly to ABC’s Law&Justice Unit.
At the time, Brown called for appointment as special prosecutor, prompting Nifong to fume, “I think I can assure you if I did anything that happened to be what Jackie suggested, that would not be the reason I was doing it.” The vehemence of Nifong’s denial suggested that Brown had touched a nerve. Could he have feared what else she might reveal?
What’s Next for Nifong?
Professionally, the State Bar holds his fate. The idea that Nifong could supervise
Personally, I suspect that in coming weeks and months, the DHC trial will not be the only occasion in which Nifong gets to experience sitting on the other side of the table in a judicial setting. Lead investigators—the role that Nifong improperly assumed on March 24—do not enjoy absolute immunity. Police department spokespersons—the role that Nifong improperly assumed between March 27 and April 11—do not enjoy absolute immunity. And Nifong could also be a prominent witness in any civil suits filed against the city of
Meanwhile, as Coleman suggested in yesterday’s N&O, the idea of criminal prosecution—once the remotest of remote possibilities—no longer is so, in part because the attempted frame with the
One final point: As UNC law professor Joseph Kennedy correctly told the Herald-Sun, Jim Coleman—the first prominent figure to call for a special prosecutor—“is looking pretty prescient right now.” Imagine if Nifong had followed Coleman’s advice months ago, rather than desperately trying to cling to a dying case.