Nifong's Legacy of Misconduct

Some reactions to the expanded ethics charges filed yesterday by the State Bar:

1.) These charges suggest that the Bar’s intent is to strip Nifong of his license.

From the AP story:

• UNC law professor Joseph Kennedy: “If these allegations are true and if they don’t justify disbarment, then I’m not sure what does. It’s hard for me to imagine a more serious set of allegations against a prosecutor.”
  

• Duke law professor Thomas Metzloff: The new charges “have significantly increased the chances for a serious sanction, possibly including suspension or disbarment.”

2.) Joe Neff is prescient.

In a December 24 N&O story, Neff and Ben Niolet analyzed Nifong’s ever-changing explanations as to why he didn’t turn over exculpatory DNA evidence to the defense. The district attorney had just given an interview to the New York Times suggesting that his heavy workload led to an oversight on his part.

But this excuse, Neff calculated, “was Nifong’s third explanation why he did not turn over the evidence.” Nifong previously had claimed he hadn’t heard about the matter prior to a December 13 defense motion; and then made the extraordinary claim that “we were trying to, just as Dr. Meehan said, trying to avoid dragging any names through the mud.”

The Bar noticed Nifong’s evasions as well—and added a fourth. On December 28, in a letter to the Bar, the D.A. returned to justification #2—a desire to protect privacy rights.

Yet, as paragraph 283 of the amended complaint noted, Meehan’s report listed the names and DNA profiles of two lacrosse players not then indicted (Dave Evans and Kevin Coleman), plus the names of all lacrosse players who had contributed DNA specimens.

In an extraordinary move, the Bar used that information to deem Nifong’s response not only unpersuasive but an ethical violation in and of itself. Nifong’s December 28 assertions that privacy concerns explained his approach to not turning over the DNA test results, the amended complaint argued, “were knowingly false statements of material fact made in connection with a disciplinary matter.”

[In an article published in today's Times, Duff Wilson (writing under the sole byline, alas) paraphrases Nifong's December Times interview to offer yet another explanation for his withholding the evidence. "In an interview last month," writes Wilson, "Mr. Nifong agreed that the DNA results had been potentially exculpatory, but said they had not seemed important to him because he was no longer then pursuing the case on the basis of DNA evidence."

The original article had mentioned the first point, but not the second. In any case, the distinction is irrelevant--the Open Discovery statute requires turning over all evidence, whether or not the prosecution considers it exculpatory. And if Nifong were no longer then pursuing the case on the basis of DNA evidence, how to explain the May decision to indict Dave Evans?]

3.) Nifong’s false representations to the court over the past several months were damning.

Nifong, the amended complaint makes clear, does not deny that Dr. Meehan told him of the exculpatory DNA evidence. That admission alone contradicted multiple written or oral statements by Nifong to various judges in the case.

On May 18, Nifong wrote, “The State is not aware of any additional material or information which may be exculpatory in nature with respect to the Defendant.” At the hearing where he stood idly by as a hate group member threatened Reade Seligmann, Nifong also Judge Ronald Stephens, “I’ve turned over everything I have.”

On June 22, Nifong again deceived the gullible Stephens, who wanted to make sure that he had discussed with Dr. Meehan nothing other than the contents of Meehan’s report. “That’s pretty much correct, your Honor.”

On September 22, Nifong deceived the new judge, Osmond Smith.

• Smith: “So you represent there are no other statements?”
• Nifong: “No other statements. No other statements made to me.”

4.) The breadth of the ethics complaint was surprising.

On the surface, the amended complaint dealt only with the Nifong-Meehan conspiracy and Nifong’s false representations of the duo’s agreement. But at least two other paragraphs of the amended complaint touched upon additional questionable behavior by Nifong.

Paragraph 205 noted that Nifong “sought and obtained these indictments [against Seligmann and Finnerty] . . . despite his office’s prior representation in the application for the NTO [non-testimonial order] that the ‘DNA evidence will immediately rule out any innocent persons.’”

Paragraph 206 added that Nifong “repeatedly refused offers from counsel for the players who were eventually indicted to consider evidence and information that they contended either provided an alibi or otherwise demonstrated that their clients did not commit any crime.”

These moves hinted at other ethical violations, specifically a violation of Rule 3.8, comment 2, which states that “a prosecutor should not intentionally avoid pursuit of evidence merely because he or she believes it will damage the prosecutor’s case or aid the accused.”

The Bar didn’t need these two paragraphs to make its case in today’s amended complaint; but they provided a compelling reminder of Nifong’s general aura of misconduct.

5.) The amended complaint made several subtle, interesting points.

The complaint cast a negative light on Nifong’s disparate approaches to similar issues. For instance, the Bar noted, when the defense requested the underlying data and complete file from Dr. Meehan, the D.A. accused defense attorneys of seeking a “witch hunt list.” He read a letter into the record from Meehan expressing privacy concerns. He complained about the excessive cost of the move.

Yet, as the Bar observed, when the defense requested the identical material from the SBI, Nifong “raised no such concerns or objections.” Could it have been that Nifong had something to hide in the Meehan material?

On a second point, the amended complaint argued that Nifong committed a “continuing violation” of the Open Discovery statute up to the very second that AG Roy Cooper took over the case.

As paragraph 255 explains, “Even when Nifong ultimately provided the underlying documents and materials on October 27, he did not provide the Duke Defendants a complete report from DSI setting forth the results of all its tests and examinations, including the potentially exculpatory DNA test results.”

On a third point, Nifong’s non-testimonial order ultimately backfired on him. At the time, it served the D.A.’s purpose to have the 46 lacrosse players engage in a “perp walk” before tipped-off media representatives.

But because the defense accepted the non-testimonial order, by law, Nifong was required to hand over to the players or their attorneys a “copy of any reports of test results as soon as the reports are available.” Nifong, of course, didn’t do so.

6.) There’s no longer much mystery to why Inv. Linwood Wilson picked December 21 to interview the accuser for the first time.

The amended complaint states that the initial grievance letter from the Bar about Nifong’s withholding the DNA evidence arrived on December 20. “Coincidentally,” Nifong decided to have the accuser interviewed the next day, when she produced a story that downplayed the significance of the DNA evidence that Nifong had withheld.

7.) The closing section underscores the extent of the Bar’s concerns.

The complaint traces a “systematic abuse of prosecutorial discretion in the underlying criminal cases,” accusing Nifong of having “engaged in conduct prejudicial to the administration of justice.”

It asserts that Nifong committed professional misconduct, violating Rule 8.4(d) of the bar’s ethics code. Comment 4 of the rule clarifies: “A showing of actual prejudice to the administration of justice is not required to establish a violation of paragraph (d). Rather, it must only be shown that the act had a reasonable likelihood of prejudicing the administration of justice.” And, as Comment 6 outlines, “Lawyers holding public office assume legal responsibilities going beyond those of other citizens. A lawyer’s abuse of public office can suggest an inability to fulfill the professional role of lawyers.”

The amended report paints a picture of a prosecutor who has flagrantly violated multiple rules of professional conduct over a period of many months, and showed no indication that his behavior was going to let up in any way even as he turned the case over to the attorney general.

How can Nifong possibly not take a leave of absence as District Attorney until these charges are resolved?