Nifong's Sinking Ship

The depths to which Mike Nifong can sink can surprise even those who have watched his performance closely over the last nine months. Yesterday, just after 11.37am, he faxed notice to the three defense attorneys that he was dropping the rape charges (but not the other charges). The same man who hogged the cameras last spring then closed down his office for a Christmas party, posting on his office door a sign reading, “NO MEDIA ............... PLEASE!!!!!!!!!!!!!”

How does this development affect what remains of the case?

1.) In the unlikely event a trial occurs, any convictions are now impossible.

With yesterday’s move, Nifong effectively impeached his only witness. On April 4, the accuser was shown photographs of the 46 white players on the Duke lacrosse team. In that lineup, the accuser made multiple errors (for starters: claiming to have seen two players who could prove they weren’t at the party and incorrectly identifying the player who made the broomstick comment). But she identified four people as possible attackers, and Nifong chose three to indict.

She did more than identify, however: she described what each of the alleged attackers did to her. By offering a new version of events 282 days after the party, Nifong argues for disbelieving the accuser’s on-tape descriptions of acts from the April 4 ID session.

Moreover, the accuser’s new version of events appears to make it impossible that one of the defendants, Reade Seligmann, could have committed the crime described by the state.

In short, whatever credibility the accuser retained has vanished.

2.) The chances of this case lasting beyond February have plunged.

The February 5 hearing (if it occurs) will consider the defense motion to suppress the April 4 lineup results. The legal justification for that lineup was already tenuous: after the accuser had failed to identify any players in two previous lineups, Nifong scheduled a third session. Only this time, he ordered police to violate their own procedures by:

(1) confining the lineup to suspects;

(2) having the case’s lead investigator, Sgt. Mark Gottlieb, run the session;

(3) telling the accuser that the lineup would consist only of suspects;

(4) reminding the accuser of the importance of making an identification.

Because the April 4 lineup not only violated Durham city regulations (which require including five filler photos per every suspect) but also contradicted the guidelines of virtually every other city and town in North Carolina, Judge Osmond Smith’s upholding it would risk the entire statewide apparatus of identification procedures.

With yesterday’s decision, Nifong has asked Smith to do the impossible: to uphold the procedurally flawed April 4 lineup, even though the prosecutor himself now denies the accuracy of much of what the accuser said in the session. No judge in his right mind would uphold a lineup under such conditions.

3.) The chances of federal intervention have increased.

Jeff Taylor of Reason displayed perfect timing with his column yesterday. He argued that Nifong’s behavior had forced “fans of limited government confront an ugly truth. Despite the sensible urge not to federalize every issue, sometimes only another layer of government can fix bad government”—or, in this case, the administration of justice in “North Carolina, America’s very own banana republic”? Playing off the suggestion of North Carolina congressman Walter Jones, Taylor pointed to Attorney General Alberto Gonzales as “the key to protecting basic civil liberties in what should be a routine criminal prosecution by local officials.”

By fantastically claiming that the accuser can no longer “remember” central aspects of the version of events he used to indict the three players but that he still wants to send the players away to prison for dozens of years, Nifong positioned himself as the caricature of a reckless, malicious prosecutor—unintentionally confirming the argument that Jones made in his letter to Gonzales.

4.) UNC law professor Joseph Kennedy also deserves an award for good timing.

In an N&O op-ed published two days ago, Kennedy demanded Nifong’s removal from the case. Kennedy noted that in light of Dr. Brian Meehan’s revelations last Friday that he and Nifong entered into an agreement to intentionally withhold exculpatory DNA evidence, Nifong had an irreconcilable conflict of interest:

1.) Like any prosecutor, he would want to offer the most vigorous in-court case he could.

2.) Like a prospective defendant in an ethics or possibly even criminal case, he would want to find ways to minimize the significance of the exculpatory evidence he and Meehan conspired to prevent the defense from seeing.

Yesterday’s bizarre decision can only be explained as a product of that conflict of interest. By claiming that no rape occurred, Nifong can, perhaps, rationalize the decision reached by Meehan and him that the DNA from five, unidentified males was irrelevant to the case, and therefore should be excluded in Meehan’s report. He reached that outcome, however, at the cost of fatally undermining the accuser’s credibility.

Ironically, his action should have no effect on the ethical problems the Meehan revelations will pose Nifong: even if the allegations are sexual assault rather than rape and sexual assault, DNA from five other males as part of the rape kit is clearly exculpatory material, and no justification exists for withholding it.

5.) The Nifong enablers have started to separate themselves.

On one side, Duke president Richard Brodhead has commendably if belatedly issued a public demand for a special prosecutor, and stated that Nifong needs to account for his behavior. Meanwhile, the sole remaining pro-accuser blog, Our Hearts World, temporarily suspended publication pending further information about the accuser’s veracity.

Others, however, appear determined to go down with the ship. After appearing to take a step toward impartiality earlier in the week, the state NAACP case “monitor,” NCCU law professor Irving Joyner, did his best to spin yesterday’s news for Nifong. The accuser’s credibility, Joyner conceded, took a hit. But, he argued, if the accuser’s “testimony is that she was moved from one part of the house to another against her will and there was sexual touching, then he [Nifong] can build a case on those charges.” Was Joyner troubled by a prosecutor indicting people on one set of facts and then committing to trying them on another? Apparently not.

The Times’ Duff Wilson penned an article in which he allowed an anonymous source (presumably Linwood Wilson) to offer pro-Nifong legal analysis. Moreover, Wilson included a lengthy quote from Victoria Peterson defending the case—without ever mentioning that Peterson co-chaired Nifong’s citizens’ committee.

Apparently in reward for its steadfast support of his cause, Nifong granted a three-hour interview to the Times on Thursday. (He did not explain why this interview was procedurally justified when he has claimed in recent months that the state bar's ethics rules preclude him from commenting on the case: by his own definition, then, his sit-down with the Times violated his ethics obligations.)

In the interview, he appeared to be losing touch with reality.

1.) Retreating to a line he last used at the NCCU forum on April 11, Nifong claimed that if the accuser makes an identification, no matter how non-credible, “I have an obligation to put that to a jury.”

This statement not only misrepresents both North Carolina law and the canons of the bar's ethics code (which requires prosecutors to exercise discretion in cases they try), but it contradicts Nifong's own record, in which he has dismissed rape charges even when the accuser could identify her alleged assailants.

2.) Nifong asserted that people need not worry about the apparent doubts the accuser expressed in the April 4 lineup. “You can’t always tell from a photograph,” said he. “The only real time that you’re able to say if you have a misidentification is to put the person in the courtroom with the other people.”

Under this conception of justice, innocent people by the thousands would be charged, on the off-chance that accusers could identify them in court--when, of course, they're conveniently sitting at the defense table.

Moreover, if Nifong believes that personal identifications are so superior to photographic ones, why didn't he conduct a live-lineup session rather than a photo ID array in April? All 46 lacrosse players were in Durham, and so assembling them at the police station--with, of course, appropriate fillers==would have posed no problem for Nifong.

3.) The April 4 lineup poses no procedural problems, claimed Nifong--because it wasn't a lineup. “What is a lineup?” he mused. “What if I have no idea who did the assault?” Of course, in court papers filed on March 23, his office already had identified the 46 white lacrosse players as suspects.

Under this conception of identification procedures, due process protections would be meaningless: the police (or, in this case, the prosecutor acting as personal supervisor of a police investigation) could orchestrate a rigged lineup, and then simply engage in a philosophical debate about “What is a lineup?”

6.) Although extreme, what we witnessed yesterday conformed to a general pattern evident for months of Nifong manipulating evidence to fit his desired outcome.

Think back to late March. Until March 29, when it appears he heard back from the state lab that no matches existed to lacrosse players, Nifong publicly, and repeatedly, maintained that DNA would identify the guilty parties and exonerate the innocent. Once the tests came back without matches, the DA announced his willingness for the “good old-fashioned way” of eyewitness ID’s, without forensic corroboration.

Or consider the length of the attack. In springtime police statements, the attack lasted 30 minutes. Once Reade Seligmann produced unimpeachable electronic evidence showing he couldn’t have participated in an attack lasting 30 minutes, the DA speculated that the attack lasted between 5 and 10 minutes, since “when something happens to you that is really awful it can seem like it takes place longer than it actually takes.”

This blog is entitled Durham-in-Wonderland because everything about this case is upside down. Nifong decided the outcome—he would charge the players with a sexual offense—and has repeatedly, and shamelessly, manipulated the evidence to fit his desired outcome, rather than allowing the outcome to be shaped by the evidence.