Witness for the Defense?

To date, Mike Nifong has resisted calls from his state’s largest newspaper, the Charlotte Observer, that he recuse himself from the lacrosse case and request a special prosecutor. Duke law professor James Coleman has recommended a similar approach. So have the Winston-Salem Journal and Rocky Mount Telegram.

The district attorney has repeatedly claimed that his sole interest is achieving justice for the accuser. If so, it’s hard to imagine why he hasn’t asked Attorney General Roy Cooper to appoint a special prosecutor. After all, even the New York Times’ Nifong apologia noted,

Increasingly, Mr. Nifong has become the focus of attacks on the case. Some of the defense lawyers have accused him of professional misconduct for, among other things, giving dozens of what they describe as inflammatory interviews early in the case and for instructing the police to employ the faulty photo lineup. The defense lawyers say, too, that the district attorney refused to meet when they tried to share evidence that supported their clients.

Since defense attorneys no longer could criticize him or his motives, Nifong’s recusal would force them to contest his supposedly overwhelming evidence. Indeed, if he actually had faith in his case, the district attorney himself would now be the primary obstacle to a conviction. His presence as a prosecutor allows defense attorneys to distract attention from the “facts” of the case. And his inexperience handling rape cases (I doubt that many sexual assault files crossed his desk during what the New Yorker termed his traffic court “semi-retirement”) prevents a more qualified figure from handling the prosecution.

Returning to reality, it’s easy to understand why Nifong has so desperately resisted a special prosecutor. “Justice” for the accuser isn’t high on his agenda; it seems unlikely, in fact, that it’s on his agenda at all. Rather, allowing a special prosecutor–or any other representative of law enforcement, such as the Justice Department–access to his case records almost certainly would conclude with the new prosecutor referring Nifong’s actions to the state bar’s ethics committee. The subsequent termination of his law license couldn’t be far behind. And that’s merely a best-case scenario for Nifong. The worst-case outcome would find him crossing the aisle to serve as a defendant himself.

There’s a chance, however, that this case could receive a special prosecutor regardless of Nifong’s intentions. The state attorney general’s office includes one section, the special prosecutions division, which can handle prosecution of local cases. Contrary to the recommendations of the American Bar Association, in North Carolina no state official–only the district attorney himself–can involve a special prosecutor in a case. But one aspect of the special prosecutions division’s protocols seems to remove all discretion for a D.A. on the issue. According to Category I, section (e), a special prosecutor is called for “when the District Attorney or a member of his staff will be called as a witness to testify regarding contested facts touching upon the merits of a case.”

In a normal case, the odds of a district attorney falling under this provision would be close to zero. But this, of course, isn’t a normal case. At various points in the process, Nifong has served as de facto Police Department press secretary and the de facto lead investigator. And he has taken at least five positions that would appear to merit further examination on the witness stand.

1.) The Choke-hold

Nifong’s national TV demonstration of the accuser being choked (wittily satirized at Liestoppers) is this case’s second most powerful image, behind only the video of Reade Seligmann at an ATM machine when the prosecution claimed he was actually at the lacrosse players’ house. In his March 31 remarks to Dan Abrams, the district attorney maintained,

Let me point out that the evidence that she would present with respect to that particular situation is that she was grabbed from behind. So that in essence, somebody had an arm around her like this, which she then had to struggle with in order to be able to breathe, and it was in the course of that struggle that the fingernails—the artificial fingernails broke off.

Now as you can see from my arm, if I were wearing a shirt, a long-sleeved shirt or a Jacket of some sort, even if there were enough force used to press down, to break my skin through the clothing, there might not be any way that anything from my arm could get on to those fingernails. So again, whether or not there would be any evidence would depend on exactly the situation. Were the fingernails actually in contact with the skin or were they in contact with clothing?

Subsequent photos of players from the party (as well as the videotape of Seligmann from the ATM machine) show no signs that any players were wearing “a long-sleeved shirt or a Jacket of some sort.” More important, in her interview with the SANE nurse-in-training, the accuser didn’t claim to have been choked–much less “grabbed from behind” in such a way that she “had to struggle with in order to be able to breathe.”

Unless he was lying, Nifong appears to have possessed evidence “regarding contested facts touching upon the merits of a case,” and therefore should be subject to cross-examination.

2.) Condoms

In late March, Nifong twice theorized about the possibility of the attackers using condoms. In an interview with the Charlotte Observer, he mused, “I would not be surprised if condoms were used. Probably an exotic dancer would not be your first choice for unprotected sex."

Then, in his March 31 interview with Abrams, he offered far greater detail:

If you are being forced to have sex against your will, you may not necessarily notice whether or not somebody behind you is using a condom. This was not a consensual sex situation. This was a struggle, wherein she was struggling just to be able to breathe. So I'm not sure that she would really have much way of knowing whether a condom was being used.

As we now know, in her interview with the SANE nurse-in-training, the accuser said her attackers didn’t use condoms. Despite myriad, mutually contradictory stories, she has never veered from that assertion. And Nifong’s three theories to MSNBC about why the accuser wouldn’t know if a condom were used seem to contradict items in her own story. From where did the district attorney obtain this information?

Unless he was lying, Nifong appears to have possessed evidence “regarding contested facts touching upon the merits of a case,” and therefore should be subject to cross-examination.

3.) The April 4 Lineup

If North Carolina is to retain any procedures regulating eyewitness ID’s after this case, a judge will have to suppress this lineup. The idea of a district attorney ordering police officers to violate their own procedures in the case’s single most important item of evidence remains the most outrageous aspect of Nifong’s misconduct.

But the lineup transcript also involves an important evidentiary issue. In his March 29 interview with MSNBC, Nifong stated, "All of the people at the party were Duke lacrosse players with the possible exception of two fraternity people who were there at some point that evening with another member of the Duke lacrosse team."

Six days later, however, the district attorney ordered police to confine the lineup lacrosse players, since he was “under the impression that the players at the party were members of the Duke Lacrosse team.”

No evidence has come to light that, between March 29 and April 4, either the Durham police or Nifong did any investigating of the list of party attendees. So under what criteria did the district attorney exclude from the lineup the “two fraternity people” he believed attended the party? This decision certainly regards “contested facts touching upon the merits of a case” and should be subject to cross-examination.

4.) The SANE Nurse-in-training’s Medical Report

On March 29, Nifong asserted, “My reading of the report of the emergency room nurse would indicate that some type of sexual assault did in fact take place.”

As defense attorneys have already noted, the report Nifong claimed to have read wasn’t even printed until March 30. Did he obtain access to another, earlier, report?

Unless he was lying, Nifong appears to have possessed evidence “regarding contested facts touching upon the merits of a case,” and therefore should be subject to cross-examination.

5.) Race and the “Crime”

On March 27 Nifong claimed that “racial epithets against the victim” played a role in the attack. Three days later, in a national TV appearance on CBS, he expanded on the point by arguing, “The racial slurs involved are relevant to show the mindset … involved in this particular attack. And, obviously, it made what is already an extremely reprehensible act even more reprehensible.”

All sides agree that a racially charged exchange occurred between the second dancer, Kim Roberts, and two or three players as the party was dispersing. Yet no evidence existed at the time Nifong made these assertions that the accuser ever was the target of “racial epithets,” or that “racial epithets” were ever used inside the house.

Meanwhile, in his March 31 appearance on the Abrams Report, Nifong was asked if anyone had admitted making the first 911 call to police (alleging racial comments at the house). The district attorney’s response? “To my knowledge, no one has done that yet.”

Yet nine days earlier, the second dancer, Kim Roberts, had admitted to police she made the call. Did Nifong have reason to doubt the veracity of Roberts’ claim; and, if so, why?

On both of these race-related issues, then, unless he was lying, Nifong appears to have possessed evidence “regarding contested facts touching upon the merits of a case,” and therefore should be subject to cross-examination.

In a June 15 interview with the N&O’s Joseph Neff, Duke law professor James Coleman characterized many of these comments by Nifong in the following way: “Either he knew what the facts were and misstated them, or he was making them up. Whether he acted knowing they were false, or if he was reckless, it doesn’t matter in the long run. This is the kind of stuff that causes the public to lose confidence in the justice system.”

At this stage, it seems undeniable that in late March and early April, Nifong made statements on a whole host of “contested facts touching upon the merits of a case.” Since he is an officer of the court, defense attorneys are within their rights to presume he wasn’t out-and-out lying in his remarks about the choke-hold; condoms; non-lacrosse players at the party; the medical report; and race. As in these five instances he was acting more as a Police Department spokesperson or a lead investigator than as a prosecutor, there would seem to be no way for the defense to explore these “contested facts” without summoning Nifong to the stand. And if they can succeed in doing so, then the district attorney has no choice but to recuse himself from the case.