Tuesday, June 12, 2007

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.

52 comments:

Anonymous said...

As a lawyer in NC, I have certain beliefs that were only reinforced by this story..prosecutors are crooked and withhold evidence more then we can imagine...poor people, especially black poor people, can do anything and get away with it because they have nothing to lose and are part of a constituency that will get support directly ie Nifong or indirectly ie Cooper no matter what they do and are continually allowed to play the race card when it benefits them...for all the hate towards rich kids like those duke lacrosse players who get special treatment or actual justice because they have money, it works both ways because if they mess up, they pay with money where as the same act by a poor person requires no financial compensation to anyone which is hardly fair to someone who has worked their whole life to get money or comes from a family that did...Nifong will lose his bar license as he is the worst kind of criminal because his acts cost people their freedom..i wish more victims of people like him could be represented by good lawyers...and i am appalled at the lack of anger toward the accuser and the fact she wont spend a day in jail while al sharpton complains about paris hilton.

Anonymous said...

Wonder if Nofing is losing any sleep tonight? He didn't seem to lose any sleep over what he did to others -- maybe the immenent prospect of something being done to him is sinking in...

bill anderson said...

My money is on a brand new excuse. Reading this is reminiscent of Jake Blues trying to keep his jilted lover from shooting him in the sewer tunnel. He comes up with a bunch of contradictory excuses, and finishes with, "It wasn't my fault!!"

Somehow, I doubt the NC Bar is going to buy into Nifong's "Jake Blues" explanation, and I sense that whatever he does simply will make the bar members even more angry and likely to convict and disbar him.

Anonymous said...

Thirteen - He has bravado but no brains. Obviously, with this dope, the hoax could only have gone on so long with the full cooperation of Titus and Stephens. Will we see smirks, asides, laughing and arrogance-he might be that dumb. Poor Witt and Freedman - their attempt to get him off, will make them look like dopes. I assume they are well paid for this job.

Anonymous said...

JLS says....,

Excellent and funny post Professor Johnson. One suggestions it either should be the:

1. Gell and Hoffman cases after the victims of prosecutorial misconduct

2. or the Hoke and Graves and Honeycutt and Brewer cases after the prosecutors accused of misconduct in each case.

not the Gell and Honeycutt cases as you say at one point.

Anonymous said...

I think everyone is trying to wade through KC's posting or the first comment.

Anonymous said...

A simply intriguing litany of Nifong excuses.

Perhaps thirteen is Mikey's lucky number.

My gut tells me that he will be disbarred. The people of NC and, consequently, the NC Bar are ripe to dole out justice this time.

The saga in Durham has been too exhaustive even for the most casual observer.


Debrah

Anonymous said...

This is the beginning of the end. Many more chapters will follow. Best-selling books, civil lawsuits galore, depositions, discovery. At least some justice will be done. Then bring on the feds.

Anonymous said...

To 12:13AM--

Very accurate assessment.

As with health care, the poor and the very wealthy don't have many worries. It's the people in the middle who are always left with the tariff and the most to lose.

Debrah

Anonymous said...

14. It was all a test. Nifong did conceal the meaning of the underlying data in his report, but only to see if that omission would be noticed by the defense. He wanted to determine whether they were good lawyers and worthy adversaries.

He wanted those LAX boys defended by only the very best, in the interests of justice and fair play; if the totally misleading report had not been noticed, Nifong would have pointed it out himself, and in fact was just going to do so when the defense luckily determined the truth and restored Nifong's faith in mankind.

So, it's all good.

Anonymous said...

Whether KC realizes it or not, his valid, geniune criticism of Nifong and the Durham PD has completely and totally exonerated the "Group of 88", the student protestors, Nancy Grace, Wendy Murphy, Brodhead, Amanda Marcotte and everyone else in this case.

It was Nifong and the Durham PD who made public statement after statement after statement about the overwhelming evidence, the vile cover up of a horrible crime, the inexcusable lack of cooperation - etc, etc. etc. Nifong and the Durham PD conspired together to butcher this case from day one.

The reaction from the students, the faculty, the adminstration and some media pundits was in direct reaction to these statements and their actions during the investigation.

Nifong and the Durham PD are the villains here. They and they alone created this mess.

Anonymous said...

This is such a relief to see sanity in Durham (with Nifong now getting his just desserts), but, remembering the corruption and the potbangers, I'd still be terrified to drive through or set foot in Durham County. Thank goodness the only people I know in N.C. are in Greensboro.

Anonymous said...

What is really hilarious about this is that the 'Fong probably does not understand that he has no chance. The North Carolina Attorney General, for pete's sake, has called him a rogue prosecutor. That is an unmistakable signal that he is cooked. So there will be no mercy, and if he is as big a prick as everyone thinks he is, then these bar lawyers will be merciless. All they have to do is ask two questions:

1) Did you, at all times, have a belief that the accused committed the crimes the grand jury alleged?

Ans. Yes.

2) What reasonable basis did you have for that belief, given the lack of physical evidence, the exculpatory evidence and the inconsistent stories of the accuser?

Ans: there is no answer to that question.

LOL

He is going to be reduced to a quaking pile of garbage. If I were the Duke Three, I would taunt him after the hearing. Really taunt him.

Anonymous said...

Anon. 12:30 : None of those people you mention are exonerated. They made all of their outrageous statements after it was revealed there was no case. Their villainy is not lessoned by the Nifong/Durham P.D. corruption, and they will forever be remembered for their statements on this case.

Anonymous said...

KC is sizzling on this post tonight/this morning.

Laser beam precision......clean and swift dissection of Mikey's nervous logorrhea.

Must be the fever pitch crescendo of expectant glaring kleig lights yet to come that gives this post its razor sharp......brimming and orgasmic....prelude to a dismembered juris doctor from the edge.

Ode to Mikey.

Debrah

Gary Packwood said...

Anonymous 12: 30 said...

...Whether KC realizes it or not, his valid, genuine criticism of Nifong and the Durham PD has completely and totally exonerated the "Group of 88", the student protestors, Nancy Grace, Wendy Murphy, Brodhead, Amanda Marcotte and everyone else in this case.
::
I would imagine that many of the Duke people will be woven into the new Nifong excuse that Professor Anderson talked about!

Nifong like Oprah is available in several sizes. Which one will we see tomorrow?
::
GP

Anonymous said...

One can almost hear Mikey rehearsing into the night for his big day.

Arrogant and still cluelessly vain, one might insert dialogue bubbles above his asymmetrical head with him muttering.......

All right, Mr DeMille, I'm ready for my close-up.

Debrah

Anonymous said...

Glad to see the Group of 88 return to posting, expressing exoneration and blaming it all on Nifong and the corrupt Durham police.

Anonymous said...

JLS says....

Re: anon 12:30

No sorry prosecutorial mistakes don't excuse lynchings or those who lynch someone nor do police lies excuse demands for or incitement of lynchings like the 88 gangsters ignoring due process.

re: anon 12:38

I really enjoy hypothetical questioning like the questions you posed for Nifong. And you are so right there really is no answer to the question what objective evidence caused him to believe Mangum.

Anonymous said...

Hopefully, quoting Steinbeck in an appropriate context:
"“In the souls of the people the grapes of wrath are filling and growing heavy, growing heavy for the vintage.”
If the Bar can be equated to the people (or as an extension of such), these grapes are leaden as the vintage begins today.

Anonymous said...

TO 12:30AM--

You either have a very, very bad memory or you assume that the whole country does.

There was hot molten lava coming from the black community of Durham. Nifong took his cues from them. He knew how the game there is played and he played it to the hilt.

I'll be generous and say that a most prime example of synergy existed and was cultivated between Mikey and his "constituency".

No one from the DPD asked the New Black Panthers to descend upon the town and threaten the lives of the lacrosse players.

That was raw "activism" at work.

Debrah

Anonymous said...

Jun 12, 2007 12:26:00 AM

DEbrah-- some great posts tonight.

TaterCon said...

"Nifong and the Durham PD are the villains here. They and they alone created this mess." -- by 12:30

Um, let's not forget to give some credit (rather, some blame) to the spark that started this fire: the initial prevaricator, the Precious Crystal G. Mangum.

Anonymous said...

He pressed on in order to win the election, bottom line. Isn't that fraud?? Fong Dong needs jail.... What a huckster!

Anonymous said...

12:30 am:

Your argument is that the presumption of innocence applies unless the DA makes some really nasty accusatons to the press?

I was ready to give the G88 a bye on the so-called listening statement, as being just caught up in the moment if they had just said "sorry" or "oops" or "my bad." They didn't, and the more vocal among them did quite the opposite.

IMHO the G88 and Fathead had a moral duty (IMHO) to at least make sure their student's were treated fairly and accorded their constitutional rights to due process.

Nothing Nifong did or could do discharged them of their duty to these kids. They failed miserably, and should not be entrusted with any other young minds.

Anonymous said...

KC's scholarly work is awesome.
But...Let's await the Hearing! This is no horserace and I'm not betting on outcomes.
Tom

Anonymous said...

Nifong is done.

I wonder if his lawyers will stick with him for the whole trial. They can not be involved in Nifong lying on the stand.

Will Nifong's lawyer's question him knowing that he will respond with obvious lies?

wayne fontes said...

As we begin the day I think we should all recall the immortal words of the 70's schlock rock band Styx.

The jig is up, the news is out
They finally found me
The renegade who had it made
Retrieved for a bounty
Never more to go astray
This'll be the end today
Of the wanted man

Anonymous said...

Well. I was wrong that he would resign yesterday. I guess it will be this AM. No one except THE cleverest among us would testify under the current circumstances.

Anonymous said...

None of the 13 excuses pass the laugh test. There must be a 14 out there. Somewhere. Floating.

Anonymous said...

Q. "Will Nifong's lawyer's question him knowing that he will respond with obvious lies?"

A. Absofxxxinglutely!!!

Michael said...

Will Nancy Grace and Wendy Murphy turn on the Fong today? Or will they be wearing black on their shows?

Anonymous said...

12 30
So u would now rather be considered useful idiots as opposed to railroading enablers. I will take it up and let u know later. Don't hold your breath. When you pass away all may be forgotten.

gs said...

So Nifong is going to risk putting, the DPD, Nurse Tara, Wilson, and Meehan on the stand giving sworn testimony.

It nice of him to further document his corruption for the possible lawsuits and criminal investigations.

What is his lawyers thinking?

GS

Anonymous said...

12 30
"The evil men do lives after them; the good is oft interred with their bones."

gs said...

12:30

The 88 profs assumed guilt and we all know what assume stands for.

As for the protesters with castrate signs, when is violence against someone ok?

Anonymous said...

From the first in this case much has been made about how the rich, white boys at elite Duke U had the resources to get them off, including an NC dream-team defense. Nifong has had the same opportunity as a rich, white prosecutor to assemble the best defense possible. Let's see how far it gets him.

scott said...

It is understandable why Crystal's numerous versions of the rape did not raise a question in Nifong's mind as to her veracity. In his world, all people have a double-digit number of versions for every act they are involved with.

mac said...

Nifong's gonna say that truth
is not a legal requirement for
prosecutors; with that,
he'll insinuate that he'll
expose some of those people
who are now holding him
accountable (i.e. I know where
the bodies are buried.)

He's like that: when backed into
a corner, threaten and bare your
teeth. It won't work, of course:
it'll likely enrage them. But
that's what he's most likely to do.
(I think they know that already.)

On a specific question from the Bar:
When asked why he wanted
the bail set so high for the boys,
he'll claim it was because of the
threats against the boys, that it
was for their safety. (You know,
like the reason Brodhead cancelled
the Lacrosse season?)

His last gambit will be to say:

"This really isn't that important,
is it? Why are you wasting
valuable time and resources on
such an insignificant case?"

He'll get hammered for all of his
responses.

Anonymous said...

Nifong believed Crystal for the same reason that the 88 believed her -- because they WANTED to believe what she was saying.

Nifong didn't question Crystal's story more closely because he knew he was dealing with a crazy whore, and he was afraid where more questioning might lead him.

gs said...

In Dec when she changed her story yet again, what evidence did he have left? He know about her mental condition and the DNA?

mac said...

GS

NoFang had a long history
with CGM and her family.
He had to know about her
mental status.

Ralph Phelan said...

"What is his lawyers thinking?"


Probably something like:
"This has got to be the dumbest client I ever had. Oh well, at least I'm racking up a lot of billable hours."

mac said...

Ralph Phelan:

Yup. But do you think he has
the resources to pay them?

Oh, that's right: according
to the 88s metatarsalnarrative
(footspeak,) Nifong must be rich
and privileged...and to be endowed
with great prowess of one kind or
another. Privilege = billable
hours. But that's footspeak.

His lawyers probably will be in a
long line of people waiting to be paid.

Anonymous said...

Working on piecing Nifong's stories together to make one whole cloth -- you know, ironing them out so there are no mutually exclusive explanations...and I find that I can reconcile them all, except 11 of them.

Be interesting to hear how his lawyers do it.

Anonymous said...

Court TV is carrying the case right now.

Vinnie Politan is now interviewing Walter Jones.

Good coverage.

Debrah

Anonymous said...

It would be comical if it were not so serious!

Anonymous said...

I'm looking for the Fong to blame as many people as he can that were involved, yet have made little public statements that can be reviewed. If he sez "Tara told me or Manly told me", what defense do these people have if the other evil henchmen all line up and say "yep, he/she told us that" ?

Anonymous said...

Turn on CourtTV. This will be a spectacle.

They just interviewed a man who spoke to the possibility that the Feds are reviewing this ethics case to determine the proper path to a civil rights case against Nifong. Priceless!

Anonymous said...

Whether or not Nifong believed the boys were guilty, whatever the nurse told him or Mangum told him doesn't affect his legal duty in regard to the predjudicial statements.

His defense there was that 'everyone' was a suspect at the time and he wasn't condemning anyone specifically, I don't think this will wash based on what was happening in the investigation at the time, nor will his excuse about the blue wall of silence work since we now know for a fact that the lacrosse players did largely cooperate, the 3 fasley accused even offering to take a polygraph.

I don't see any way out of the DNA issue, his best bet is to claim that he wasn't paying attention and that he thought they had all the information. I don't think this will wash either, given his statements to the judge about having turned everything over when in fact he had failed to turn over the info. on the large amount of non player DNA found on and in Mangum.

I knew he wouldn't resign, he isn't ever going to resign for the good of Durham, he wont' probably resign even after he's disbarred unless its a legal requirement.

Anonymous said...

Who is paying Nifong's legal bills? Are we, the people of Durham?

Ralph Phelan said...

"His lawyers probably will be in a
long line of people waiting to be paid."

In my experience, lawyers usually demand cash up front.

Is there any way for an interested investigator to determine whether Nifong has taken out any second mortgages or loans against his car, racked up huge credit card bills, or anything of that sort?

Even just a graph of his credit score as a function of time over the last few months might be interesting....