Nifong's Peculiar Motion

For a moment, set aside all sense of personal ethics, and put yourself in the position of D.A. Mike Nifong. You’d probably want to avoid returning people’s thoughts to events of late March and early April, when you made a series of public statements that were misleading at best, inaccurate at worst, and almost certainly in violation of the state bar’s ethics code. No reasonable district attorney would want to revive the image below, of Nifong demonstrating on national television the “chokehold” that even the accuser told the SANE nurse didn’t occur.

If we’ve learned nothing else over the past six months, however, Mike Nifong isn’t a reasonable man. How else to explain his bizarre attempt to stimulate memories of his unethical (but politically useful) pre-primary publicity barrage? Last week, the district attorney accused defense lawyers of “prima facie evidence of an attempt to influence jurors,” citing a defense poll of 300 Durham County voters. Such polling, of course, is routine in high-profile cases. But this effort had particular justification, as defense attorneys noted in a response motion, due to the danger that an impartial jury “could have been substantially threatened by extensive prejudicial public comments made by the Durham County District Attorney.” Kevin Finnerty, father of one of the accused players, with justification described himself as " outraged" by Nifong's move, since, "When he first got involved in this case, he inflamed the story locally and nationally with his opinions, before doing the investigation."

That Nifong would have chosen this, of all issues, as the topic for his first post-indictment motion is more than a little odd. The D.A.'s in-court rationalizations were even more peculiar.

First, Nifong clumsily attempted to lowball the number of his public statements on the case. Channeling Ted Stevens, the district attorney stated that “the internet(?) is reporting that I gave 50-70 interviews.” In fact, asserted Nifong, “I’ve checked my calendar and have approximately 15 interviews noted on my calendar the last being April 1^st.”

The relevant section of the state bar’s ethics code, Rule 3.8(f), contains no provision that excuses the prosecutor’s first 15 “extrajudicial comments that have a substantial likelihood of heightening public condemnation of the accused.” In any case, as the N&O quickly revealed, the figure of 50 interviews came not from “the internet” but from Nifong himself. Speaking on behalf of “the internet,” Liestoppers compiled a partial list of Nifong statements that easily exceeded his claim of “approximately 15 interviews.”

Then, to bolster his motion, the district attorney supplied two affidavits. The first came from his wife, who claimed to have spent an hour(!) on the phone with a pollster who ended their conversation by expressing his sympathy with the district attorney’s plight. It’s unclear who Nifong expected would find credible his assertion that a pollster would take 60 minutes with any caller, much less one who identified herself as the district attorney’s wife and thus could not serve on the jury for this case.

The second affidavit, however, is much more revealing—and unintentionally damning to Nifong’s standing. When asked whether he/she was familiar with the Duke lacrosse case, Mr./Ms. Anonymous (hereafter MMA) claimed that “I don’t watch it and don’t know because I don’t want my young children hearing that kind of news.” MMA was, however, familiar enough with the case that he/she didn’t “watch” or “know” to learn that “no one was complaining [about the poll] except Mike Nifong’s wife.”

According to MMA, the poll opened with a series of questions inquiring about his/her opinion about Duke, Duke lacrosse, race relations in Durham, and Nifong’s political motivations. The pollster then asked MMA’s permission to give him/her some of the details of the case, and ascertain his/her reactions. These details included:

• “The 2 women left the party together and that she was passed out and wearing a see through outfit.”
• “Within 2 days police went to the women and showed her pictures of Duke Lacrosse players and she wasn’t able to pick out anyone but when they came back 2 weeks later she was able to pick out people.”
• “They were not able to find any bodily fluids on her as evidence that she had been raped.”

The pollster then asked MMA if he/she would be less likely to convict:

• “if we can prove that one of the accused had an ATM card [video?] proving that he was somewhere else.”
• “based on the DNA evidence” that showed no matches to the accused.

In a line that must have warmed Bob Ashley’s heart, MMA swore, “I was told information that I should not have been told unless I was a member of the jury trying this case.” Of course, all of the information in the poll, while downplayed or distorted in Ashley’s Herald-Sun, has been in the public domain for months, and frequently reported on Triangle television stations as well as in the N&O. MMA seems to believe that judicial proceedings in this country are secret, with defendants and their attorneys losing not only their First Amendment rights but even their ability to file public motions.

Even more remarkable, however, were MMA’s apparently candid admissions after learning of the facts of the case. “I do not believe,” confessed he/she, “I could be an impartial witness after hearing this because I was convinced they were innocent.” (As far as I know, MMA is on neither side’s witness list.) Indeed, MMA wondered, “Why are they even trying this case? These men are innocent.” The pollster, it seems, was the first person to inform MMA that Nifong:

• sought indictments against someone who could prove he was somewhere else at the time of the alleged crime;
• had the accuser see a second lineup of the exact same people after she couldn’t identify any of her alleged assailants two days after the crime;
• lacks any DNA or other scientific to bolster his case.

In light of these facts, MMA told the court, “I was wondering why my tax dollars were being spent like this, because it was a waste of time.” It seems, to Nifong’s chagrin, as if MMA has reached the same conclusions as “the internet” about the dubious nature of the D.A.’s decisionmaking.

Hat tip--Susan D.; thanks to Liestoppers for the screencap.