The Last 200 Hours

The last 200 hours have witnessed a tumultuous turn of events in the case.

(1) In a move that seemed a desperate response to the Meehan DNA revelations, Mike Nifong dropped rape charges and provided a theory of the crime that contradicted all previous accounts of the accuser.

(2) Apparently deciding that enough was enough, the state bar publicly filed an ethics complaint, asserting that “Nifong engaged in conduct involving dishonesty, fraud, deceit, or misrepresentation . . .”

(3) In the second half of a devastating one-two punch, the North Carolina Conference of District Attorneys, Nifong’s peers, announced that “it is in the interest of justice and the effective administration of criminal justice that Mr. Nifong immediately withdraw and recuse himself from the prosecution of these cases and request the cases be assigned to another prosecutorial authority.”

(4) The defense filed a motion to summon Brian Meehan as its own witness, blocking Nifong’s effort to pursue the case the “good old-fashioned way” by pretending as if DNA evidence didn’t exist.

A few items of note:

The State Bar’s complaint. Bar procedures require a trial to occur between 90 and 150 days of filing the complaint (i.e., anytime between March 28 and May 27). Disciplinary trials normally are open, with cameras allowed in the courtroom.

The timing of the complaint raises another interesting question: What did Nifong reveal to his political allies before Election Day? The district attorney obviously knew that he was under investigation well before November 7. When he appeared before the Durham Committee on the Affairs of Black People to solicit its support, did he inform the city’s African-American leadership that the Bar likely would bring charges against him? If not, does the Committee now feel deceived by Nifong?

What of the People’s Alliance, Durham’s self-styled good-government organization? The so-called pro-gay rights group enthusiastically backed the candidacy of a DA who welcomed an outspoken homophobe into his inner circle. Will the P.A. now abandon its good government credentials as well, or will it demand Nifong’s resignation?

And will the Group of 88’s professorial wall of silence crumble? Will even one of these professors, who so gleefully rushed to judgment last spring, now retract their signatures from the document?

The District Attorneys’ Conference. Even more than the publication of the State Bar’s complaint, this action is unprecedented.

Intriguingly, the Conference didn’t demand that Nifong recuse himself from the case solely because of the ethics complaint—the letter deemed Nifong’s recusal necessary “in light of all the developments of the Duke Lacrosse case, including the filing on December 28, 2006.” [emphases added]

Conference president Garry Frank described the document as “the unanimous statement of the officers of the Conference of District Attorneys,” and confirmed that the executive board reviewed Nifong's handling of the entire case.

The defense motion. Continuing his sycophantic attitude toward Mike Nifong’s misconduct, NCCU law professor Irving Joyner (the NAACP’s “case monitor”) proclaimed that the dismissal of the rape charges could enhance Nifong’s case. Said Joyner:

Now, they don’t have to establish that there was penetration committed against the accuser . . . In addition to that, now they don’t have to deal with the DNA or the lack of DNA evidence. And with the rape shield statute, it’s unlikely that information will even come before the jury to consider.

Some might wonder how inventing a wholly new story nine months after the fact could strengthen Nifong’s case. Anyhow, the defense motion gives the lie to Joyner’s assertion that Nifong’s manipulation will allow DNA to vanish from consideration.

Mike Nifong, of course, wasn’t always so dismissive about the importance of DNA evidence. After all, this is the same man who stated:

· March 23 motion: “The DNA evidence requested will immediately rule out any innocent persons, and show conclusive evidence as to who the suspect(s) are in the alleged violent attack upon this victim.”

· March 28: “There won’t be any arrests before next week. I have decided not to make arrests until DNA evidence is back.”

· March 29: “We are awaiting DNA results from tests that have been done so far. We expect those next week, and depending on the results of that, it may be necessary to extend the scope of the search, but we at least have an idea of the direction which that would go.”

Nor was Nifong always so dismissive of the significance of Dr. Meehan’s findings. On May 3, for instance, he commented to WRAL, “My guess is that there are many questions that many people are asking that they would not be asking if they saw the [DNA] results. They’re not things that the defense releases unless they unquestionably support their positions.”

And think back to John Stevenson’s front-page, August 1 opus in the Herald-Sun—which obviously came from leaks from Nifong’s office. The article breathlessly discussed “previously undisclosed [sic] matches” of DNA, while obtaining quotes from two figures eager to spin matters in a pro-Nifong direction—Joyner and lawyer John Fitzpatrick, a Nifong campaign contributor. Fitzpatrick asserted that DNA evidence would give “more credence to the prosecution’s theory that something happened. It is a potential link to a crime. It is a big thing.” To Joyner, DNA results “would tend to support the prosecution’s case.”

Neither Joyner nor Fitzpatrick, of course, any longer celebrate the importance of DNA to the case.

The defense motion offers a sense of why Nifong, too, no longer wants to talk about DNA. The motion opens with a devastating summary of Meehan’s equally devastating December 15 testimony. It notes that, according to Meehan, “the best way to approach forensic DNA analysis of evidentiary items is first to determine who can be excluded as a source.” In this case, the three players targeted by Nifong, along with all other members of the 2006 Duke lacrosse team, would comprise the excluded group.

The motion then walks the reader through the specifics of Dr. Meehan’s testimony, with six items of the rape kit showing evidence of the DNA from anywhere between one and four unidentified males. One of those males, ironically, appears to have been Meehan himself, showing how easily transference of DNA can occur—in a lab with many protections, or in a bathroom trashcan with none.

The motion concludes that Dr. Meehan’s testimony would impeach the myriad, mutually contradictory, versions of events presented by the accuser (most or all of which appear to have claimed no sexual contact for a week prior to the party). Moreover, the defense motion states Meehan would be expected to discuss the rationale behind the decision he entered to with Nifong (a/k/a the “client”) to intentionally not report the exculpatory DNA evidence.

No doubt Professor Joyner will soon explain why all of this information is irrelevant to Nifong’s case—along with how the joint censure from the Bar and the DA’s Conference is routine business. But few others seem willing any longer to adopt that view.