Thursday, March 01, 2007

The Nifong Response

Broadly speaking, the Bar had made three charges against Mike Nifong:

(1) His inflammatory public comments violated Rule 3.8(f) of the bar’s Code of Professional Responsibility, which states that prosecutors must, “except for statements that are necessary to inform the public of the nature and extent of the prosecutor's action and that serve a legitimate law enforcement purpose, refrain from making extrajudicial comments that have a substantial likelihood of heightening public condemnation of the accused.”

(2) Some of these comments—particularly his speculation that condoms might have been used—constituted “conduct involving dishonesty, fraud, deceit, or misrepresentation.”

(3) The conspiracy into which he entered with Dr. Brian Meehan to withhold exculpatory DNA evidence violated provisions of both the state bar’s ethics code and at least three North Carolina laws.

Nifong’s defenses—offered both in a just-released letter by the defendant himself, dated December 28, and in a memorandum of law submitted yesterday by his two attorneys—are, to put it mildly, unconvincing. Moreover, it appears as if in the response, Nifong inadvertendly disclosed that he violated another provision of the bar's ethics code.

1.) Inflammatory Public Statements

This allegation primarily involves Nifong’s pre-primary publicity barrage, but also addresses some comments he made after securing indictments, such as his rambling e-mail to Susannah Meadows of Newsweek.

Nifong offers five lines of defense:

(a) All of his public statements were based on information he was fed by police or medical personnel;
(b) Rule 3.8(f) applies only after indictments have been secured, and can be trumped by other concerns;
(c) Rule 3.6, comment 7 supersedes Rule 3.8(f) when prosecutors so choose;
(d) He was naïve.
(e) The Bar should take his word when he says he didn’t intend to heighten “public condemnation of the accused.”
Nifong goes out of his way to implicate the police. Many of his inflammatory public statements, Nifong contends, were “consistent with matters of public record as outlined in the affidavit attached to the Application for Nontestimonial Identification Order.” So if he misled the public, it was because the police (or SANE nurse-in-training Tara Levicy) fed him misleading information.

Nifong argues that most of his statements “were made at a time when no individual suspects had been identified,” and therefore the requirements of 3.8(f) didn’t apply. Even if they did apply, he suggests, his statements had other motives: “to reassure the community that the case was being actively investigated by the Durham Police Department in an effort to obtain assistance in receiving evidence and information necessary to further the criminal investigation.”

These claims are absurd. Suspects had been identified—46 of them, through a nontestimonial order initiated by Nifong’s own office. As Duke Law professor Thomas Metzloff correctly noted, “There was an accused, and the accused was the Duke lacrosse team-a defined group of people, identifiable and defined by Nifong in having them all give DNA samples. There clearly was an accused in the sphere of the rule.” Moreover, Durham has a mayor, and a city manager, and a police chief, and a Police Department spokesperson, any or all of whom could have “reassured the community” or launched “an effort to obtain assistance in receiving evidence and information necessary to further the criminal investigation.” Nifong never explains why he had to fulfill this role (other than the obvious need of heightening his public name recognition before the primary).

As for statements made after he obtained indictments, Nifong claims that he was “entitled” to speak out “pursuant to comment [7] to Rule 3.6 of the Rules of Professional Conduct,” which states that “extrajudicial statements that might otherwise raise a question under this Rule may be permissible when they are made in response to statements made publicly by another party, another party’s lawyer, or third persons, where a reasonable lawyer would believe a public response is required in order to avoid prejudice to the lawyer’s client . . . Such responsive statements should be limited to contain only such information as is necessary to mitigate undue prejudice created by the statements made by others.”

This claim is, frankly, bizarre. Who was Nifong’s “client”? The accuser? The city of Durham? His political needs? His pension fund? Cy Gurney, his wife?

If the Bar won’t accept his legal reasoning, Nifong asserts naïveté: “Defendant further admits that at the time he made said statements that he did not fully understand the extent of the national media interest in this particular investigation and as such, he did not comprehend the effect said statements may have on any matters related to the case.”

That claim is absurd: the man who made famous the chokehold on MSNBC lacks the credibility to assert that “he did not fully understand the extent of the national media interest in this particular investigation.”

Then, finally, Nifong falls back on a laughable defense: he didn’t mean to do it. Nifong denies that any of his statements were “intended to heighten the public condemnation of an accused or that his actions were intended to heighten the public condemnation of an accused.” Nowhere in more than 40 pages does he provide any evidence to support his assertion.

This claim is absurd: the man who called the players “hooligans” and compared their “crime” to a cross-burning and a murder lacks the credibility to assert that he did not intend “to heighten the public condemnation of an accused.”

2.) “Dishonesty, Fraud, Deceit, or Misrepresentation”

This allegation chiefly involves Nifong’s repeated public suggestions that condom use might explain the lack of DNA evidence—even though the accuser not only never claimed her “attackers” used condoms, but specifically stated that they did not use condoms.

Nifong’s response was ingenious: “Defendant admits that the initial medical report indicates that the victim advised that a condom had not been used. However, based upon defendant’s experience, he has learned that a complaining witness rarely ever knows whether a condom was used in a sexual assault and as such, he denies any allegations . . . that his comments were misleading.”

I asked Kathleen Eckelt about the validity of Nifong’s assertion. She replied, “As far as the Duke case goes, I thought the accuser said from the beginning that no condom was used. As far as I can recall, I don’t think I’ve ever had a patient insist that no condom was used, then turn around and say that it was.”

3.) The DNA Conspiracy

The allegation here is that Nifong conspired with Dr. Brian Meehan to withhold exculpatory DNA evidence.

Before analyzing Nifong’s latest line of defense, it’s worth reviewing his previous explanations for his actions.

(1) He absolutely did not know about Meehan’s exculpatory test results: “The first that I heard of this particular situation was when I was served with these reports—this motion on Wednesday of this week.” (December 15, morning, in court)

(2) He absolutely did know about the results, but deliberately agreed to withhold the information for privacy reasons: “We were trying to, just as Dr. Meehan said, trying to avoid dragging any names through the mud.” (December 15, afternoon press conference)

(3) He might or might not have known about the results, but was overworked: “You know, it’s not the only case I have right now. I have two. The other one’s a quadruple homicide [which arrived in his office in mid-October].” (December 23, New York Times)

(4) He might or might not have known about the results, but, distracted by political concerns, did not provide them: “Because I had never previously been involved in a political campaign, and because I was facing an unusually contentious challenge from an unprecedented number of challengers [two!], I was not always able to give the case my full attention.” (December 28, Nifong letter to bar)

(5) He might or might not have known about the results, but, because of the incompetence of his underlings, did not provide them: “Due to the volume of material to be copied for each defendant . . . several individuals, including both attorneys and support staff, were involved in the numbering and copying of pages, which was not supervised by me. These people were . . . [not] familiar enough with the facts of the case to have known whether anything was missing.” (December 28, Nifong letter to bar)

(6) Since these incidents occurred in Judge Smith’s courtroom, and Smith neither sanctioned him nor filed an ethics complaint against him, his actions must have been acceptable. (December 28, Nifong letter to bar)

(7) He’s being held to a different standard than others: “For some time now, the ‘word on the street’ in prosecutorial circles has been that the North Carolina State Bar, stung by the criticism resulting from past decisions involving former prosecutors with names like Hoke and Graves and Honeycutt and Brewer, is looking for a prosecutor of which to make an example.” (December 28, Nifong letter to bar)

(8) People are out to get him: “A well-connected and well-financed (but not, I would suggest, well-intentioned) group of individuals—most of whom are neither in nor from North Carolina—have taken it upon themselves to ensure that this case never reaches trial. (And if this seems like paranoid delusion to you, perhaps you should check out websites such as former Duke Law School graduate and current Maryland attorney Jason Trumpbour’s, which has not only called for me to be investigated, removed from this case, and disbarred, but has also provided instructions on how to request such actions and to whom those requests should be sent.)” (December 28, Nifong letter to bar)

So, which of these eight (8) previous defenses—some of which were mutually contradictory—would Nifong offer in his filing yesterday? None.

Instead, Nifong offered three new lines of defense:
(a) He didn’t have to turn over any material until a trial date was set;
(b) The one-sided nature of the report is irrelevant, since Nifong knew he would have to turn over the underlying data, which is easily understood;
(c) The issue is irrelevant, since he wasn’t required to turn over a “complete report,” at any stage of the process.

The first claim is amusing: it essentially says that Nifong believes he is free to misrepresent items to the court and to withhold evidence at will before a trial date is set.

Imagine how that philosophy would apply to poorer defendants, especially in a place like Durham where the prosecutors have enormous power in setting trial dates. It is a philosophy that effectively guts both the ethics code and the Open Discovery law.

The charge that he was attempting to conceal information through entering into an agreement with Meehan is non-credible, Nifong maintains, because “the underlying results of the tests and examinations performed by DSI would clearly provide that information to the Duke defendants.”

This assertion is almost comical. As an experiment, it would be interesting to force Nifong to go through 1800 pages of highly technical forensics data and see whether he could “clearly provide” the relevant findings.

Finally, at least four times, Nifong asserts that North Carolina’s Open Discovery law, the law governing NTO’s, and the Constitution all do not require the state to turn over “complete report.”

Consider the ramifications of that statement. Nifong maintains that as long as the state turns over underlying data, it can produce a report that is wholly one-sided. If defendants can afford top-rate attorneys to interpret the data, that’s fine. If they can’t, they’re out of luck. This, it’s worth reiterating, is the man the state NAACP has propped up for 10 months.

Intermingled in these responses is the damning paragraph 212, which states

At the time that defendant met with Dr. Meehan, he was focused on the question of whether evidence had been discovered that corroborated the victim’s photographic identification of the two indicted Duke lacrosse players as her assailants and whether there was any evidence to corroborate her near certain photographic identification of a third Duke lacrosse player as a third assailant. As such, as of the time of the meeting with Dr. Meehan as alleged in paragraph 212, his attention was not focused on whether trace DNA from individuals not members the Duke lacrosse team which was found on certain items tested would be material evidence which would affect the outcome of any subsequent trial. Defendant therefore denies that he made any conscious decision, at the times referenced in paragraph 212 of the Amended Complaint, as to whether trace DNA of individuals not members of the Duke lacrosse team was potentially exculpatory, as a trial date had not yet been scheduled in this matter and he was still investigating the facts of his underlying case and had not focused on whether this information was exculpatory.

This statement is an admission that Nifong violated Rule 3.8, whose comment 1 affirms that “a prosecutor has the responsibility of a minister of justice and not simply that of an advocate; the prosecutor’s duty is to seek justice, not merely to convict.”

In paragraph 212, Nifong admitted that he was not looking at all the evidence, including evidence of innocence; instead, he was looking solely for evidence to convict. Finally, a few extraneous items from the filing:

(1) Nifong accuses Sgt. Gottlieb and Capt. Lamb of being misinformed when, on March 24, they memorialized that he was now in charge of the investigation.

(2) Nifong denies seeing Dr. Meehan on April 10, to be informed that no DNA matches existed to Reade Seligmann or Collin Finnerty. Instead, he says this meeting didn’t occur until April 21. This claim contradicts recollections of Meehan, Gottlieb, and Himan; and Nifong didn’t challenge it in court during Meehan’s December 15 testimony.

(3) Nifong concedes that ADA David Saacks filed a motion stating that the DNA tests would exonerate the innocent, but “denies any inference that he was bound by representations made by subordinates in his office prior to his having knowledge of the case.” This is an extraordinary claim: carried to its logical conclusion, it would suggest that prosecutors’ offices all over the country could routinely make representations to the court and then, if the results didn’t come back in the preferred manner, have the DA take over the case personally and say he’s no longer bound by earlier filings.

The thesis of this filing: Nifong did nothing wrong, and if he gets the chance to engage in massive prosecutorial misconduct in the future, he’ll seize it. This is a man unethical to his core.


Anonymous said...

Good posting KC - I hope someone in power sees this issue as clearly as you do.

Anonymous said...

Upon reading the Fong's response today and the letter dated 28 Dec, I fear that there may be young women chained up in his basement and shallow graves in his backyard. The guy is a psychopath.

Anonymous said...

Irony of ironies; this is off Nifongs web site. I now understand why some people stick hot pockers up people; it wasn't clear before.

Victim's Rights

"The Victims Compensation Program, administered by the Division of Victim and Justice Services, is designed to assist persons and crime survivors who suffer personal injury or death caused by criminal conduct which occurred on or after August 13, 1987. Under North Carolina law, the victim, his/her survivors, or a legal representative may file a claim within two (2) years to receive compensation from this fund."

Anonymous said...

Nifong's responses should prompt all he ever convicted to re-examine their cases. If he thinks the way he handled this case is ethical, he must have conducted prior cases in the same way. I'd bet that he has pulled some dirty tricks before. Also, he is making a total ass out of Smith.

Chicago said...

Dear Mr. Nifong,

For the sake of your family and children, seek professional mental help. You are disgracing yourself.


Britney Spears

Anonymous said...

How's this work out if your the victim of a conspiracy that included the DA, the DPD, the community, and worse, the University you've paid to attend...

More from Nifong's web site:

"What to do if Threatened or Intimidated

Threatening a witness is a crime in North Carolina. If you receive a threat from the defendant or anyone else, call the police or contact the prosecutor or the Victim Witness Assistant in the District Attorney's office."

Anonymous said...

Absolutely superb analysis. The bar association has no choice except to disbar this man. He also should face criminal charges. The state of North Carolina continues to be complicit by refusing to drop the remaining charges against the three players.

Anonymous said...

Am I understanding DA Nifong's argument properly? Under his logic a prosector can withhold exculpatory evidence until a trial date is set. In the meantime plea bargain with a defendant, who because he does not know that the exculpatory evidence exists accepts a guilty plea. Since no trial date then would be needed, the exculpatory evidence need never be disclosed. Breathtaking.

Anonymous said...

Finally, a few extraneous items from the filing:

(1) Nifong accuses Sgt. Gottlieb and Capt. Lamb of being misinformed when, on March 24, they memorialized that he was now in charge of the investigation.

My understanding is that Nifong enjoys immunity from criminal charges as DA, but if he were "in charge of the investigation" does his immunity greatly decrease?
Thanks, Durham lib dem

Anonymous said...

In his 12/28 letter to the BAR, Nifong asks for the name(s) of the BAR members who filed the grievance. He also states that if these people want to remain anonymous, he doesn't want them to be provided with a copy of the letter. Is that why this letter was not distributed earlier?

Anonymous said...

KC's final sentence: "This is a man unethical to his core."

I agree, but think what we're now seeing is mostly desperation. Nifong is in bad trouble with only the poorest of resources to fall back on. He has chosen to go with a scattergun approach, which KC has characteristically exposed for the nonsense it is (and whose inherent weakness Nifong at some level probably comprehends).

Anonymous said...

12:26- I suspect that the reason we havn't seen the 28th letter is because the bar or the SPs or the Feds have been quietly showing it to the Durham PD, Dr Meehan, the ADAs in Nifong's office and anyone else that might have once been thinking about helping the Fong out of his current situation

Anonymous said...

Does Congressman Jones have any suggestions? Why won't the feds step in now?

Anonymous said...

JLS says.....

Professor Johnson, I believe:

"“A well-connected and well-financed (but not, I would suggest, well-intentioned) group of individuals—most of whom are neither in nor from North Carolina—have taken it upon themselves to ensure that this case never reaches trial."

includes you and this site. I believe FODU was just meant to be a single example. So I offer you my congratulations in being included at least implicitly in Nifong's document.

Anonymous said...

The only way it makes sense that Nifong actually believes this strategy is credible, is if he believes that he is no worse than the state bar officials and the rest of the criminal justice system.

Anonymous said...

KC - I appreciate the synopsis. It's clear and logical. Thanks for helping many of us understand.

Anonymous said...

12:55 --

My estimate is that Mr. Nifong is indeed not much worse than most of the State Bar officials and the rest of the criminal justice system.

kbp said...

Thanks KC

"The first claim is amusing: it essentially says that Nifong believes he is free to misrepresent items to the court and to withhold evidence at will before a trial date is set."

Isn't the First Setting under the Case Management for Discovery, meaning Discovery of known evidence is due before the Second Setting begins?

huesofblue said...

Nifong presented his lawyers with a hell of a case to defend, as illustrated by KC's overview of his ever-shifting explanations. But there's an old saying amongst lawyers, "When the law is against you, argue the facts. And when the facts are against you, argue the law."
Here, the facts are decidedly against Mr. Nifong. His fondess for changing storys will probably serve him as poorly in his own case as it did in the farce that got him there. That said, I think his lawyers did a pretty good job. It's no coincidence that Nifong's response starts off with a pretty technical defense regarding the time at at which the rule begins to apply. I have no idea whether the argument is valid, but it sounds more plausible than, "I forgot they found so much unidentified male DNA in her rectum."

Nifongs argument about turning over the underlying data is actually stronger than it might initially sounds.

A prosecutor's duty to turn over exculpatory evidence has never included a duty to send an executive summary of exculpatory high points with each box of discovery. Rather the defendant's lawyers have to pick out the exculpatory evidence on their own. I think Mike's lawyers are arguing that this is the same situation.

Will it fly with the Bar? Probably not. A good lawyer can turn lemons into lemonade, but there no turning shit into shiraz. Still, I've been pretty curious as to how Nifong's lawyers would spin this stinker of a case. They did ok.

Anonymous said...

I think what frightens me the most about all this is that, from what I can read into the man, Mike Nifong honestly and truly believes that he has done nothing wrong, and can't understand why anyone would think otherwise.

That's probably one of the scariest things out of this whole fiasco.

Anonymous said...

I am a lawyer and I can certainly understand why so many people are troubled by what this case says about the justice system in the U.S. But please, don't assume that every lawyer is like Nifong. Most lawyers are hard-working, decent individuals who would never engage in the kind of deceitful and dishonorable conduct that Nifong has. The practice of criminal law doesn't pay very well (the Roy Blacks and Johnny Cochrans are the rare exceptions, not the rule), and most lawyers who choose criminal law do so because they want to make a difference in a positive way -- and not because they want to put innocent people in prison. Yes, there are bad and unethical criminal lawyers and yes, we need to make changes to our system so that such people are more readily identified and weeded out much earlier in the process. But let's not throw the baby out with the bathwater. A lot of the people who are most outraged, and most vocal about expressing their outrage, about the abuses in this case are themselves lawyers (Jason Trumpbour, Stuart Taylor, etc.). Nifong represents the worst of criminal lawyers, but he certainly doesn't represent the majority of them.

Anonymous said...

Combine Paragraph 212 with paragraph 202; in p 202, Nifong says he doesn't recall an April 10 meeting with Meehan, but Himan, Gottlieb and Meehan say they did meet on the 10th. Nifong only recalls a 4/21 and a 5/12 meeting. The first indictments came on April 17. Nifong seems to be covering for any charges he may have instructed Himan and Gottlieb to withhold from the Grand Jury the DNA evidence supporting the players. We'll see.

Anonymous said...

judges Smith and Stevenson should be cashiered as well. They allowed Nifong to lie in court, accepted those lies, and now their decisions in such lies have become part of Nifong's defense case.

At any time until and including today they could have sanctioned Nifong. But they are also lying bastards.

Anonymous said...

12 21
He can only do that because Smith IS a total ass.

Anonymous said...

So presumably a defendant can languish in jail even though the DA has exculpatory evidence. The only requirement is that the evidence be disclosed before trial.

Nifong is quite a legal scholar. Maybe Torquemada can give him a job working for the Inquisition. I hear there is a pretty good pension plan...

Anonymous said...

I believe that, under NC law, doctoring a report is perfectly acceptable, as long as the data underlying the report is not doctored, and...

- the people who raise a stink about it are not from NC;
- the prosecutor is in an election and needs to "reassure [part of]the community";
- the judge doesn't complain;
- the prosecutor is really busy looking for way better evidence.

Ahah! Nifong is innocent.

Anonymous said...

Perhaps a lawyer or other poster with knowlege of both NC law and the ways of lawyers could comment on the strategy or motivation of Nifong's defense team. I think his attorneys are experienced and respected. If that is so, why would they be parties to what does indeed seem an "absurd" defense? Thanks, Vince

P. Rich said...

It's amazing to think that, with supposedly competent legal advice, this is the best N can do for a statement of defense.

I remain skeptical, and will until this case is history. Nifong is an elected Liberal Democrat in a Liberal Democratic state with a Liberal Democratic governor and (supposition, based on general recent trends) a Liberal Democratic BAR. The "victim" is a member of a large Democratic voting bloc - locally, statewide and nationally - as are the far Left supporters about whom so much has been well-reported here.

In short, Nifong is a serious political embarrassment (among all the other things he is), and Democratic damage control is an inevitable back-room topic (as would Republican DC be if he were one of those). How this factor will play into outcomes remains to be seen, but it might well result in some "inexplicable" behavior on the part of the political elements involved.

Anonymous said...

It's clear that Nifong drafted this response himself rather than relying on his attorneys to do it. That's not unusual in this kind of lawyer-against-lawyer proceeding, but clearly a big mistake on Nifong's part.

He should rely on his attorneys to try to pull him out of this hole, because all he has working for himself is a shovel.

It just shows his arrogance and lack of understanding of reality.

bill anderson said...


This analysis is the best I have read. Contrast this to the "Nifong admitted" trash that John Stevenson had today in the Hurled-Scum. Ashley and company have decided to go down with the Bad Ship Liefong.

This is akin to the "kettle pleading" defense that they used to teach at Harvard Law School. The defendant gives three separate defenses that are mutually exclusive, but lays them out, anyway. Likewise, we see Nifong doing the same.

I think it is instructive that in his statement, as K.C. so deftly points out, Nifong says that he was interested only in the information that would demonstrate guilt, but chose to openly ignore any exculpatory evidence. You see, Nifong believes, apparently, that if he believes someone is guilty, then that defendant has absolutely no right to come up with information that might absolve guilt.

This is a remarkable document, and if the NC Bar swallows this, then they should disband the organization altogether.

Anonymous said...

I'll be interested to learn exactly how much it cost the Duke 3's lawyers to de-cipher the 1,800 pages of raw DNA data. Clearly, the "expensive lawyers" didn't do this themselves -- they had to pay a super-expensive expert to do it. To know the figure, would help to bring home the arrogance of the snide Nifong defense, "They knew we didnt give it to them, because we gave it to them."

My guess is, the Duke 3 lawyers by now have spent a minmum of $15,000 just on DNA consultation fees, and that's a conservative figure, with the meter still running -- obviously not including any Court appearance fees, yet.

How many accused people can pay for that kind of expertise, on top of the lawyers' own fees -- just to learn what the DA already knows from an oral report? And them that can't afford it, will be screwed to the wall by The Fong.

Walter Cronanty said...

To 12:26 am. - I don't know about criminal liability, but as to civil liability, ie. a 42 USC Section 1983 civil rights lawsuit, a prosecutor does lose his/her absolute immunity if he/she becomes investigator, as opposed to merely performing prosecutorial duties. Will check at work today, and post this evening, unless another poster definitively answers the question.

Anonymous said...

"In paragraph 212, Nifong admitted that he was not looking at all the evidence..."

You mean "In his response to paragraph 212 of the ethics complaint, Nifong admitted that he was not looking at all the evidence..." right?

Walter Cronanty said...

To 12:26 am, again. Sorry, earlier post was partially wrong/stupid. DA never has immunity for "criminal" acts. A person can be "granted" immunity by a court for criminal acts - say, for example, mob hitman granted immunity for testimony against higher-ups. I have been interested, since I started reading this post about 2-3 months ago, about the civil liability of Nifong, if he took over the investigation. If I remember my research correctly [had to research this issue 1-2 years ago], DA absolutely immune for prosecutorial duties/decisions, but only qualifiedly [good faith immunity, for example can't manufacture evidence] if he steps into the shoes of a police officer by doing investigative work. I will check and post later.

bill anderson said...

Michael B. Nifong is not just a sociopath; he is a bleeping sociopath. A sociopath is different than a psychopath, although Mikey might have such characteristics as well.

A sociopath is dishonest to the core, and will tell lies on lies when they suit him or her. Even if the lies are mutually exclusive, he then tells another lie on top of that. That is what we are seeing here.

While a person is entitled to a vigorous defense, a person is not entitled to lie. It seems to me that Nifong's attorneys also are implicated, in that they are promoting outright lies in a legal proceeding. As anyone knows, an officer of the court is bound to tell the truth, period. A defense attorney cannot, by law, knowingly construct a false defense.

These filings by Nifong clearly are false, and they remind me of various scenes in movies starring the late John Belushi. Of course, Belushi would raise an eyebrow when he was lying. Maybe in Mikey's case, the wart on his forehead turns different colors. Who knows?

At any rate, I would hope that someone files ethics charges against Nifong's attorneys, too, since they knowingly are presenting a dishonest defense.

Anonymous said...

I believe that, under NC law, doctoring a report is perfectly acceptable, as long as the data underlying the report is not doctored, and...

- the people who raise a stink about it are not from NC;
- the prosecutor is in an election and needs to "reassure [part of]the community";
- the judge doesn't complain;
- the prosecutor is really busy looking for way better evidence.

Ahah! Nifong is innocent.

Anonymous said...


Anonymous said...

So, when I'm arrested for murder in Durham, I now have the iron-clad defense of "I did'nt mean to do it!"

Anonymous said...

On the April 10th/21st claim, I would imagine that would be fairly easy to determine for a fact. As a government employee, he almost assuredly either a) took a fleet car from Durham to Burlington or b) took his own car but turned the mileage in on an expense report. Either way there is very likely to be a paper trail with some dates and particulars.

That said, I'm sure such a paper trail proving that he actually went to Burlington on the 10th would lead to a statement along the lines of "I was just visiting Elon University's new law school and that trip had nothing to do with this case." or "They just opened up a brand new Target and Best Buy on University Drive and thought I'd drive an hour and give them a look-see."

I see the domain name is available for purchase. ;-)

Mike said...

to huesofblue
There is another lawyer saying that has been around for quite a while, "If the facts are against you and the law is against you attack the credibility of those bringing the charges (witnesses)." It looks to me like Mr. Nifong’s attorneys are following this dictum.

A general comment - I have nothing to do with the criminal justice system other than occasionally serving as a juror and thirty years ago appearing as a witness in a theft case. I’m not an attorney, not a retired college professor nor a former police officer. I know one thing that it behooves all of “us” to remember: police generally attempt to locate and arrest guilty individuals; state prosecutors generally don’t attempt to railroad innocent people. Do miscarriages of justice occur from time-to-time: yes. To solve that we have the fourth estate and habeas corpus.

It may not be the best of all possible justice systems but to paraphrase Winston Churchill, it far exceeds any other.

Mike Rayfield
Spring, TX

jim2 said...

One poster some time ago stated that Durham's (and/or Nifong's)legal exposure lessened significantly if a case actually went to trial, versus all charges being dropped/dismissed before trial.

Can someone here speak to that?

Anonymous said...

P. Rich, most Republicans in remotely similar situations to Nifong's have the grace to resign. If not, the Republican will "vote them off the island".

Only if they can actually make a strong case for their own innocence vis a vis the accusations are they allowed to hang around, and not always then.

Anonymous said...

I think Nifongs’ mentor is the Iraqi Information Minister Muhammed Saeed al-Sahaf. His innuendos sound very similar and funny.

Anonymous said...

Regarding difference in liability - In order to proceed against Durham, Nifong, etc. there has to be a final resolution of the criminal charges. If the case went to trial and there was a not guility verdict, the liability picture would be the same as if the charges were dropped. The problem is that this case is so tainted, one juror could hold out for guilty and hang the jury. There was a similar case in NY involving Columbia grad student. The guy was actually convicted and imprisoned. The conviction was ultimately overturned. The state was desperate to have the guy plead guilty to a misdeameanor or anything, in order to defuse the civil suit. The guy refused to plead and ultimately the state was forced to drop all charges.

Anonymous said...

Mike Nifong, the Duke faculty who are known as the Gang of 88, and the entire decade after decade culture of debris in Durham, NC represents in bold relief what "jumping the shark" means.

In all its metaphorical allusions, "jumping the shark" represents the time at which a situation has reached its climax. A time when things have been pushed too far and have now taken a downturn.

The phrase was originally used to describe a TV show that had outlasted its entertainment value. When script writers strain for a storyline, trying to keep a show fresh long after it has lost its original appeal.

On the old "Happy Days" series when it was approaching its end, the script had Fonzi jumping over a shark in a leather jacket. That episode has long been referenced as the time everyone became aware that the show had had its run.

"Jumping the shark" , therefore, became a widely used metaphor for anything that was in its last days. The climax, if you will.

Now we have "packing the magnet".

This phrase is used when "jumping the shark" has jumped the shark. Beyond reaching a climax or a downturn, "packing the magnet" represents a time of conclusion.

Denouement. The end. Enough already. We're sick of you. Your cover is blown. You are superfluous bovine excrement. We've had enough and we're not going to take it anymore.

No better description will there ever be when we see the shark jumping.....cum.....packing the magnet antics by Mike Nifong, the Gang of 88 with their infantile and ridiculous Campus Culture Initiative, Pee Wee Brodhead's obfuscations, and the entire apologist culture of Durham.

Liberal Democrats and the racists for whom they have provided cover decade after decade have pushed the envelope way too far this time.

The entire world is watching. The incessant cries and complaints from so-called "victims" are now met with disgust and laughter.

Just as in days of old when the Ku Klux Klan and other hate groups had to be obliterated, so it goes with the modern-day hate groups who would gleefully send three innocent white men to a life in prison.

Moreover, these hatemongers wish to spread that hate across the campuses of the country. They wish to elevate that hate to the status of a major.

These embarrassing "victicrats" have long "jumped the shark".

With their silly CCI, they have entered the realm of "packing the magnet".

When these useless creatures who inhabit academia, as do the Gang of 88, are finally shown the door.......and when Mike Nifong is fitted for his orange jumpsuit, sweet denouement will finally have its day.

Debrah Correll

Ex-prosecutor said...

I agree with the previous posts as to when a prosecutor loses absolute immunity. That's why Mr. Nifong denies that he led the investigation, such as it was, and relied on the misrepresentations of Gottlieb, etc. This dumps civil liability solely on the officers and the Durham police department. However, the interest of Gottlieb is to respond that the officers were directed by Mr. Nifong, who was directing the investigation. This way, the officers can claim minimum or no responsibility for such critical decisions as to charge the three, not to take a statement from the complainant and arrange a "cooked" lineup. I understand that arranging a photo spread consisting only of suspects departs from the procedures of the Durham police department, as well as required procedures, the offices must have an explanation for why they did so, to deflect civil liability. They have the same problem with the decision not to immediately tie the complainant to a written version of what happened. This is standard police procedure, and the courses of the subsequent usually relies upon the specifics of that statement.I'll bet is what the Durham police always does. To justify their aberrant behavior they must explain they were following orders from Mr. Nifong, upon whose legal expertise they relied.

As for the criticism of attorney ethics boards, much of it is deserved,but I don't know that lawyers were more lax than other boards investigating themselves, such as physicians. But things have changed in the last 10-15 years. When I began practicing law 30 years ago, it was not at all unknown for lawyers to extract sexual favors from clients, especially lawyers specializing in divorce. I don't recall any clients making complaints because, I expect, they knew that nothing would be done. Such behavior was winked at, as was most everything else.

However, beginning in 1970 or so, states began requiring mandatory continuing legal education, including ethics courses. Also, state ethics boards became more active. In my state, which borders NC, a lawyer having sex with a client, stealing money or using proceeds of a settlement, without telling the client the check has been received, will result in suspension for the practice of law.

Mr. Nifong's incredible misbehavior, as well as his arrogant responses to the disciplinary complaint will, in my view, result in a lengthy period of suspension or disbarment. Then his real problems begin, for I expect he has no insurance to provide a defense to the civil suits or pay a judgment.

Anonymous said...

Couldn't Nifong make a decent case here that he didn't know/wasn't involved in the worst injustices of the case?

Like all good company men in bureaucracies, Nifong surrounded himself with loyal henchmen. Like those who rise in such organizations, he ably politicized gains from his unethical behavior while assigning the risks of such to his underlings. Note:

* He didn't even talk to the FA until Dec and simply took her at her word as a disadvantaged minority in what, if true, would be a shocking crime
* He did not interview and continually forge the FA stories to account for exculpatory evidence and plugs holes – his underlings did (Linwood, DPD)
* He didn't conduct the tainted lineups himself

Furthermore, wouldn't Nifong come across as more believable than his underlings when it comes to the he said, she said dispute over the most damming DNA issue? I suspect that Nifong has played this far slicker than the DPD, ADAs, Linwood, etc and that he can place smoking guns in all their hands without direct documentation back to himself. He may look like a buffoon to northern, big-city lawyers and academics, but he’s probably a pretty big fish in Durham’s pond (I tremble imagining what fabrications the FA, Baldo, Lynwood, etc would up with if pressed like Nifong).

Couldn't Nifong legitimately claim that he was not in charge of the investigation given that he carefully manipulated underlings without any paper trail back to himself? If so, isn't his liability drastically reduced under the guise of his "pure" role as a DA rather than that of lead investigator too?

While offended, I do find Nifong and his lawyers approach to his defense as logical as can be made at this point. What is frightening is that this seems to be par for the course in the area and any institution located there (DukeU) or contemplating locating there (Google) will suffer from such deep institutionalized corruption.

bill anderson said...

There is another important point here, as Nifong's arguments now make the state's case against Reade, Collin, and Dave even more difficult. He basically is impeaching both sworn testimony (Brian Meehan) and the claims of the police officers. In short, he is saying that Meehan, Gottlieb, and Himan are liars.

This now presents a huge conflict. If Mikey is right, then we have even more evidence that the case was a lie from the beginning and should be dropped. If Mikey is lying again, then he has put himself in an even worse position.

Either way, Nifong loses, but he damages his own beloved non-rape, non-kidnapping, and non-sexual assault case in the process.

Anonymous said...

In spite of "checking his calander" and only finding 15 to 20 interviews, he now finds the missing 50 to 60 in his written reply. Gotta love it.

duke09parent said...

"When the law is against you, argue the facts. And when the facts are against you, argue the law."

Mike at 9:45 sort of said this but the third option is:

"If you don't have the facts or the law, attack the opposition."

Anonymous said...

ah, the famous "spaghetti" defense...throw every possible thing up against the wall and hope something sticks. the outcome is still garbage.

Anonymous said...

......"and if the opposition repels your attack, attack yourself!"

He's done, the only person that doesn't know it is him

Anonymous said...

from a non-lawyer/retired professor: I have a comment / question regarding Bill Anderson's post at 1118 AM. Can Meehan, Himan, and Gottlieb be required to testify (or be deposed) for the state bar hearing? Does the state bar have subpoena power?

The Dude said...

Great work, KC. I hope your book sells millions and you become THE authority on this type of case. Some notes/comments, as I could add nothing new.

Nifong becoming the "lead investigator" was well vetted on your site and should be in you archives for substantiation. Regardless he took advantage. He never denied being in charge. He chose "not to' speak with V, witnesses, etc.. The prosecutor is liable for all the misdeeds of the State.

Nifong has now cast aspertion on gottlieb, et al. Does anyone think they are going to sit there and take one for him? Wait until Gottlieb explains how nifong made him "make up" the notes. It has to be forthcoming. nifong's answer(s) don't even make sense. I think he is buying time and hoping the dismissal of charges clears him of "some of the mISCONDUCT'.

Whether he is liable doesn't have that much to do with being the lead Inv. It seems the bar/courts have decided that the misconduct has risen to the level of CRIMINAL CONDUCT. That would make him liable as a prosecutor. hard to prove but i think there is "plenty". wait until the others line up to splill their guts. Nifong is one stupid person.

Anonymous said...

I always thought the old saying's third option ( when the law and the facts are against you ) was "pound on the table." Seems to me that is a little bit of what Mikey is doing with the various "furneners meddling in NC bidness" stuff.

Anonymous said...

You can almost hear the huge sigh of relief from the Gang of 88 when they check KCs website and find another day of focus on Nifong.

"Thank goodness that copperhead outside agitator has turned his focus away from us, let's hope it stays that way."

Anonymous said...

JLS says....

re: anon 9:40

Certainly it is hard to imagine that three Durham employees were in Alamance county one day without some kind of paper trail. That is not including Meehan's appointment logs.

That made this the most shocking part of the filing to me. Did Nifong lie transparently? Did Nifong destroy evidence in the log of his daily where abouts? If Mehan, Gottlieb and Himan can be shown to have met and all say Nifong was there can there be any doubt he was, unless he can show he was elsewhere? This particular evidentuary issue will be interesting to follow.

Gary Packwood said...

Where is the Got'Ya?

I am just not very happy with how these interrelated and interdependent groups of people in Durham are behaving recently.

The town members of the Pot-Bangers group are not saying much as is the case with the G88 and the Angry Studies students.

I just can't buy the theory that Got'Ya groups are sitting somewhere silently ...licking their wounds.

Also, we have an 18 year old on campus alleging that she was raped in a house owned by an alumnus at some ridiculous hour of the morning by a black guy who is out on bail with an attorney.

I haven't heard a peep about that case.

The Women’s Center and The Take Back The Night group are positively mute about an 18 year old women attending an all night party with strangers …off campus which is high risk behavior according to the Sexual Assault Support Services crew.

There are just way too many groups of people bumping into themselves …silently.

All of these groups of people came together last March like the planned invasion of Normandy yet they now practice Brrr Rabbit and… lie low and practice quietude.

They all have adopted Got'Ya as their primary strategy. Every the group that showed up in the courthouse with death threats.

What is the next planned.... Got’Ya and where are they going to drop it?

Michael said...

re: 1:17

[Certainly it is hard to imagine that three Durham employees were in Alamance county one day without some kind of paper trail. That is not including Meehan's appointment logs.]

I would expect a place that does lab analysis for criminal cases would have video cameras operating in the lobby and other areas and that they would keep them around for a while.

And that the building where Nifong works would have cameras too. Hopefully a shot of the officers coming to pick Nifong up is sitting around somewhere.

There might even be some CNN or other network footage of the three heading out of the building to the police car for the ride.

And of course, there are the workers in Nifong's office that could be asked to testify if he left that day escorted by the officers in question, how long he was gone, etc.

Was there a receptionist at the lab that day that can identifiy him? Did he sign the log book? Many places of business require keycard access to travel around a building (sometimes even to go to the bathroom) and may require an escort. At a minimum, you'd need to sign out a visitors badge.

I would assume some phone calls before the meeting between the officers, Nifong and Dr. Meehan which there should be a record of.

The problem with calling everyone a liar over a meeting like this is that you don't know where a record might show up. You might have driven by a supermarket with outside security cameras that have you on tape.

If you made a call while you were at his office, there should be a relative record of where you were when you made the call.

Anonymous said...

On the most serious charge, conspiracy to withhold DNA results:

Nifong claims that he didn't need to provide complete results in the report since he knew that defendants would receive the underlying data through the discovery process. The underlying data was contained in the 1800+ pages of discovery material turned over to defendants. Didn't Nifong OPPOSE defendants' motion to compel production of those 1800 pages (going so far as to call the request a "witch hunt list" in open court)? If Nifong had succeeded in having defendants' motion quashed, they never would have received even the underlying data! So Nifong is saying that he knew he didn't need to include the full results in the report, because he knew that eventually there would be a motion to compel production of the underlying data, which motion he planned to strenously oppose, but he knew that the court would rule against him anyway. In this regard, Nifong's defense is crazy. It is such a poor argument that even if it were factually true his behavior would still be unethical.

Jamil Hussein said...

Ok, he is a proven liar, master of dirty tricks, and ruthless opportunists.
Too bad there isn't a job for people who uniquely possess these fine characteristics:-)

Seriously, he will make a great congressman along with "Freezer" Jefferson, John Murtha (videotaped when he took bribes from FBI informant) and Alcee Hastings (corrupt judge, removed from office by congress).

The Dude said...

Didn't the meeting with DNA lab take place a long way from Durham? Car logs, expense accounts, Nifong signing the release/contract for payment. something had to be documented somewhere. I would encourage everyone to do their best to let Gottlieb, Himan, etc realize that nifong is using them. I guess they are too stupid to know. why else wouldn't they already have a lawyer and an imunity deal. This is going to cost big bucks. the fallout will be whether it was gottlieb or the police.

Gayle Miller said...

While Mr. Nifong may engage in the self-serving practice of blaming everyone except himself for his woes (which will continue into the foreseeable future in my estimation), and may rail against "outsiders" who are stirring the pot, I would insist that injustice for anyone is injustice to be fought by EVERYONE and last time I looked, that was the American way of doing things.

And Mr. Nifong, you may shortly find "outsiders" (as in the FBI) hauling your happy butt off to a
6 X 8 accommodation for an appreciable passage of time - and it will be well deserved.

Anonymous said...

For what it's worth:

Did you see the headline in this morning's N&O? It was, "Nifong says he meant no harm"

I immediately thought of the old M&M's commercial where the gamblers are sitting around the table, and one of them says, "These cards are marked --They're a mess, a chocolate mess!" They pull their guns, and suddenly the bartender interjects, "Easy boys, the dirty dealer meant no harm!"

Anonymous said...

JLS says....,

re: ex-prosecutor, anon 11:11 and others.

Well before Gotlieb had any reason to worry this case was coming apart and thus well before he had any reason to start making things up, Gottlieb wrote to start the 4 April 2006 photo session:

"3/31/2006 1223
Investigator HIman and I met with Durham Co. DA Michael Nifong in reference to doing a photographic line up with the new mug shot style photographs obtained during the Non-Testimonial Order procedures conducted on March 23, 2006 at the Durham Police Forensics Unit. Mr. Nifong suggested we put together the mug shot type photographs into a group since we are under the impression the players at the party were members of the Duke Lacrosse Team .....

He further goes on and sets out how they are tying to evade the rules on lineups by claiming to ask Mangum if each person was at the party and what they were doing. But that is not as important to my point here that before Gottlieb had any reason to worry about any risk to him personally, he creditted or blamed as you like, Nifong with "suggesting" how to do the photo array.

Finally here is a link to the transcript. I can not cut and paste from it so sorry for any typos, but you can read what Gottlieb wrote here:

I quoted from the first paragraph

lm said...

Re: Nifong's defense "didn't mean to heighten public condemnation of accused"

Anyone else see the movie review for Black Snake Moan?
"It wouldn't mind turning you into an honorary member of the Duke lacrosse team. If you resist and remain a sober and solid citizen (and you will out of will or simple maturity), it's certainly not the movie's fault."

Public condemnation shows no sign of abating, and will continue regardless of case disposition. People like this reviewer will continue to feel free to make the egregious error of applying a worn stereotype to living, breathing individuals thanks to Nifong's efforts. Sadly, the ample quantities of non-lacrosse DNA and the prosecutor being charged with ethics violations have not stopped the flow of condemnation. What will?

On the other hand - there was an accurate characterization of Crystal:
"a combination of moral sloth, psychological malady and gynecological condition requiring immediate attention."
But HER name was not mentioned.

Anonymous said...

I've seen it a zillion times. People with limited capability whoare able to build small fiefdoms because no one cares. They become an empire to themselves and lose touch with the larger world. When they are required to account for their actions back in the real world they no longer have(or never had) the ability effectively communicate. "Because I said so" just isn't persuaive with people outside of the small pond. Nifong reminds me of a 3 year old who really believes he his invisible, all because his parents didn't have the heart to tell him he missed the potty again.

Nifong you aren't invisible and the whole world is becoming aware of what a truly large mess you have made.
Even most of the political hack sucker fish will start peeling off Mr. Nifong.

Nifong's hat trick said...

In Nifong's memorandum of law it states;
"Statements made between March 27, 2006 and April 3, 2006 were made at a time when no individual suspects had been identified..."

That's a lie!

There were 46 people identified as suspects. The Duke Lacrosse team, made up of 47 INDIVIDUALS, with INDIVIDUAL names, faces and reputations! Except for the one black Lacrosse player,EACH and EVERY member of that team was a suspect according to Nifong! That was known from day one, March 14th!

Nifong's condom statement was also an attempt to justify maintaining the inclusion of the Lacrosse players as suspects when the DNA did not match!

Regarding the DNA omission, Nifong's memorandum of law states;
"...unless the omission deprived the defendant of a fair trial..."
Luckily the defendant's lawyers found the exculpatory evidence before the case went to trial, but what was Nifong's intent? Doesn't that count for something? He didn't INTEND for them to find it or he would have made it very clear to the defendants, their lawyers and the media that there was the presence of DNA from 5-7 other males!

Nifong exhibited prosecutor brutality. He assaulted these boys with "force likely to produce great emotional injury" which should be punishable by the same laws that protect citizens against police brutality.

Anonymous said...

It is amazing that Nifong notes his twenty-seven year career as a prosecutor, during which he has never been accused of withholding evidence, and then demands that he be given the benefit of the doubt. After all - since he had gone twenty-seven without withholding evidence (or without having been caught in doing so) why would he now behave differently?

What a laugh! The answer is clear - for the first time in twenty-seven years, Nifong was presiding over a case that could determine whether he would win... or lose... an election. And this was an election that he could not afford to lose.

hman said...

I remain mystified by the question of what Judge Smith was thinking around the time of the December hearing. He has not uttered a public word of disapproval regarding Nifongs conduct of this case and surely he could see it as plainly as any outside observer. Did he think it didn't matter enough to exert sanctions against it? I mean, a felony was committed right there in his court-room and he did not seem to care. And now, as his "reward" Nifong is invoking that as a kind of validation of his stupid, evil choices. How hard was it to predict that bad trouble would follow if he allowed gross misconduct to go un-hindered in such a high profile case? People will say that this case is not especially un-usual in DurhamJustice. OK, I understand that but didn't he notice the camera trucks, the Fox News gang,or even the formidable K C Johnson standing there taking notes?

gwallan said...

"Threatening a witness is a crime in North Carolina. If you receive a threat from the defendant or anyone else, call the police or contact the prosecutor or the Victim Witness Assistant in the District Attorney's office."

So where does this leave the pot bangers and the Black Panthers?
In Australia threats of harm carry sentences of between five and ten years.

Anonymous said...

3:45 said: "A prosecutor's duty to turn over exculpatory evidence has never included a duty to send an executive summary of exculpatory high points with each box of discovery. Rather the defendant's lawyers have to pick out the exculpatory evidence on their own. I think Mike's lawyers are arguing that this is the same situation."

Even though they are not required to summarize and highlight, if they happen to produce a summarry and highlights for their own benefit, aren't they supposed to be included in discovery as well? Wouldn't so much as a hand written note describing the test results fall under the discovery law?

7:22 said: "I remain skeptical, and will until this case is history. Nifong is an elected Liberal Democrat in a Liberal Democratic state with a Liberal Democratic governor and (supposition, based on general recent trends) a Liberal Democratic BAR."

That's good news. If the Dems are so firmly entrenched, then they have nothing to fear from any hay that a Republican could make over this horrendous appointment. They can disbar him and raise a flag and hail "Victory!" and paint themselves as guardians of the people.

Anonymous said...

Walter Cronanty,
12:26 here.. thanks for investigating the question about Nifong's criminal vulnerabilities. KC would love to hear your thougths too. Has Nifong commited acts that could make him vulnerable to criminal prosectution? I can see disbarment, and civil suit liability, but inquiring minds wonder if he currently risks a legal situation where he could go to jail?
Durham Lib Dem

Anonymous said...

JLS says.....

re: hman

How hard was it to predict that bad trouble would follow if he allowed gross misconduct to go un-hindered in such a high profile case? People will say that this case is not especially un-usual in DurhamJustice. OK, I understand that but didn't he [Judge Smith] notice the camera trucks, the Fox News gang,or even the formidable K C Johnson standing there taking notes?

This has constantly amazed me since the first hearing on TV last summer. After reading on message boards prior to the first first setting what a wonderful moral fine Judge Stephens and he turns out to be either a complete moron who can not control his courtroom or just plain corrupt. Then Judge Titus is no better and issues a gag order to try to stop the 60 Minutes segment. Finally Judge Smith become the third NC Judge to sleep during this case.

As you say, how in the world can these guys not know their every move will be under a microscope? They seem so afraid of the DA's scheduling power, particularly the two Durham judges, that it is as if NC trials do not have judged but ADAs on the bench.

Anonymous said...

Cities are going to need to rent the stadium to hold all the people at Kc's book signing.