Nifong's Guessing Game

There seems little doubt that Mike Nifong will play the “Blame Game” in his ethics trial, scheduled to begin this morning at 10am. The Durham Police, especially Officer Ben Himan and Sgt. Mark Gottlieb, appear to be his likeliest target. Nifong also has strongly suggested that he will allege selective prosecution. And enablers of the DA have floated the argument that he should be forgiven for any ethical improprieties since he had faced no previous ethics allegation.

While these lines of defense are all easy to predict, it’s harder to determine how Nifong will respond to the Bar’s allegation that he conspired with Dr. Brian Meehan to withhold exculpatory DNA evidence. He has offered no fewer than thirteen separate explanations—some of which are mutually contradictory—on this issue. Below is a list, with comments on what the Disciplinary Hearing Commission would have to decide to uphold Nifong’s viewpoint.

(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) Upholding this excuse would require the Disciplinary Hearing Commission to ignore Nifong’s subsequent interview with the press outside the courtroom, and then with the New York Times.

(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) Upholding this excuse would require the Disciplinary Hearing Commission to ignore the fact that Meehan’s report did mention the names of at least two then-unindicted players, suggesting that whatever motivated both the doctor and the DA, privacy wasn't a main concern.

(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) Upholding this excuse would require the Disciplinary Hearing Commission to decide that the state’s Open Discovery law—and, indeed, the terms of the ethics code—do not apply to any prosecutor that is handling more than one case.

(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) Upholding this excuse would require the Disciplinary Hearing Commission to decide that neither the state’s Open Discovery law nor the terms of the ethics code apply in election years.

(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) Upholding this excuse would require the Disciplinary Hearing Commission to decide that neither state’s Open Discovery law nor the terms of the ethics code apply for poorly administered prosecutors’ offices.

(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) Upholding this excuse would require the Disciplinary Hearing Commission to ignore Smith’s recent memorandum.

(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) Upholding this excuse would require the Disciplinary Hearing Commission to decide that because it applied overly lenient punishments in the Gell and Honeycutt cases, it is obligated to let every other prosecutor in the state get away with ethics violations.

(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 www.friendsofdukeuniversity.blogspot.com/, 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) Upholding this excuse would require the Disciplinary Hearing Commission to abandon common sense.

(9) He didn’t have to turn over any material until a trial date was set. This argument especially appealed to one of Nifong’s last enablers—the Herald-Sun editorial page—in the days before the H-S, too, abandoned the DA. Upholding this excuse would require the Disciplinary Hearing Commission to decide that neither the state’s Open Discovery law nor the terms of the ethics code apply in cases where defendants enter into plea bargains.

(10) 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. (January 16, Nifong letter to bar) Upholding this excuse would require the Disciplinary Hearing Commission to approve “separate-but-equal” justice, in which defendants who lacked the resources to hire good attorneys or experts would be out of luck. It’s worth remembering that this argument came from the person who, for the last fifteen months, was propped up by the state NAACP.

(11) The issue is irrelevant, since he wasn’t required to turn over a “complete report,” at any stage of the process. Upholding this excuse would require the Disciplinary Hearing Commission to engage in statutory interpretation, and to suggest that when the legislature wrote a law saying that the state needed to turn over a report of all test results from an NTO, the legislature didn’t really mean “report.”

(12) He wasn’t paying attention to potentially exculpatory evidence. In his final meeting with Dr. Meehan, stated Nifong, “I was instead particularly focused on the finding [sic] of DNA consistent with that of David Evans on the false fingernail,” and as a result did not give “the actual written report much more than a cursory inspection a this time.” Upholding this excuse would require the Disciplinary Hearing Commission to rule that prosecutors are not bound by Rule 3.8, comment 1, which requires the DA to examine all evidence, since “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.”

(13) In a preview of the Baker/Chalmers report’s argument, it was the defense’s fault: “My failure to provide the data underlying the test results initially was based on the fact that the defense had not yet asked for it.” (January 16, Nifong letter to bar) Upholding this excuse would require the Disciplinary Hearing Commission to rule that prosecutors are not bound by the state law requiring all test results from an NTO to be turned over to the subjects as soon as those results are available.

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Which of these rationalizations will Nifong offer this week? Or will he come up with a new explanation entirely?

Coverage of today’s hearing is available online at WRAL and News14; Court TV plans to televise the morning proceedings, with afternoon coverage on its website.