New Defense Move

The defense just filed a letter,* highlighting Nifong’s contradictory claims regarding the content of his April 11 meeting with the accuser.

This issue places the judge in a difficult bind. As a Liestoppers thread pointed out, the essential question here is, “Which lie to we believe?” Nifong has alternatively suggested that he did or did not speak with the accuser about case-related issues. No judge, however, wants to out-and-out accuse the district attorney of lying. And even if action were taken, it’s hard to believe that Nifong would produce anything more than a sanitized, Gottlieb-style, “after-the-fact” report.

This effort most recalls an earlier defense motion asking the judge to compel Nifong to read the discovery file. That motion was denied—not because the court believed that the D.A. shouldn’t read the file, and not because anyone believed that Nifong actually had read the file, but because approving such a motion would have violated judicial custom.

In short, what can be done when a district attorney routinely behaves in a way so violative of legal norms? The obvious answer: grant Kirk Osborn’s motion to compel Nifong’s recusal.

The Cheshire letter, more explosively, asks for the notes and reports of Nifong’s investigator, Linwood Wilson. Wilson, it’s worth remembering, was last heard from publicly claiming that nothing in the discovery file showed the accuser changing her story. The next day, defense attorneys faxed to Wilson a police report showing the accuser claiming she was raped by five people. Wilson, like Nifong, appeared not to have even read the entire discovery file.

According to the Cheshire letter, Nifong, remarkably, has given the defense no material produced by Wilson. The district attorney, as of March 24, functioned as the de facto head of this investigation. Surely the defense is entitled to the reports of all the people who worked under him.

Yet again, the district attorney has flouted the Open Discovery Law by refusing to produce evidence until the defense demands it, despite his obligation to turn over all evidence, and to have done so months ago.

[Update, 10.59pm: In light of Nifong's consistent refusal to provide the defense with material regarding the April 11 meeting, it's worth recalling this item from Benjamin Niolet's Nifong profile:

In his prosecutions, Nifong opened up his entire file to defense lawyers -- something the law didn't require until 2004. It was a matter of fairness, he said in the 2005 interview, but it also added to the intimidation factor. He would tell a lawyer what he had and what he was going to do, and then in court he would do it.

"I was very good at what I did, but I was kind of cocky," he said.

Nifong, it appears, no longer adheres to this principle.]

*--corrected from original item, which incorrectly suggested intent to file a motion.