Everett's Odd Arguments

Robinson Everett, a retired judge and Duke law professor, endorsed Mike Nifong in both the primary and the general election. But until recently, Everett had been one of the few voices of reason coming from the Nifong camp. He championed a speedy trial (which the D.A. didn’t support) and also called on Nifong to give the accuser a lie-detector test, a course obviously not pursued.

In recent days, however, Everett has published two unusual defenses of Nifong.

First, in a letter sent to the N&O, he expressed surprise at Governor Easley’s statement that Nifong had committed not to run for a full term.

Previewing a line of argument that appeared in a Herald-Sun editorial yesterday, Everett stated, “If Easley believed he was appointing a competent district attorney, I cannot understand why he wanted a promise from Nifong that he would not run for this position in the next election.”

Of course, this strategy isn’t hard to understand at all: as the governor implied, he didn’t want to appoint someone who might be tempted to politicize the office. The practice is not at all uncommon—governors often employ it when appointing people to Senate vacancies (as in New Jersey in 1981 or Tennessee in 1993). Naming a placeholder allows for a fair fight in the pending election, or ensures that a governor will not have to take sides if the local party is divided.

Given the extreme danger of mixing politics and the law (think back to Nifong’s appearance at the April NCCU forum for the most blatant example), Easley’s instincts were on target—even if he showed no courage in then not making this information public once Nifong broke his word.

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Second, in a recent Herald-Sun op-ed, Everett outlined a possible legal justification for Nifong’s entering into an agreement to intentionally withhold exculpatory DNA evidence. The rape shield provision of North Carolina’s criminal code, Everett suggested, might rule the results of these tests inadmissible. As a Liestoppers analysis sadly observed, this line of reasoning channeled the discredited arguments of Wendy Murphy.

I received a thoughtful e-mail from a DIW reader who practices law in California, which passionately and persuasively critiqued Everett’s argument. He wrote,

I was prepared to just blow off another one-sided and absurd Herald-Sun article, when I got to the end and found out that Mr. Everett is a law professor at the Duke University School of Law.

This matter has produced more than its fair share of hyperbole, but I honestly think that Mr. Everett’s article would not warrant a grade above a D for a first year law student.

First, let’s assume that we accept absolutely “everything” (factual and legal) that Mr. Everett says is true other than his ultimate conclusion. Mr. Everett “doubts” that the evidence of semen from individuals other than the defendants fits into any of the exceptions to North Carolina Rule of Evidence 412. Therefore, Mr. Everett concludes “Judge Smith, who will try the case, may not allow the jury to hear this evidence . . . .” However, from these premises he concludes that Nifong might have been justified in not turning over the results to the defense. That conclusion is so irrational as to raise the question of whether it really represents Mr. Everett’s honest opinion.

Once Mr. Everett concedes that there is any possibility that the evidence might be allowed in by any Judge, it follows that (if the evidence tends to exonerate the defense, which one must concede that this evidence does), then it must be turned over. The alternative is to give the prosecutor the effective right to make the ultimate evidentiary ruling as to whether the evidence can be introduced. If the defense does not know about the lab results, it cannot even attempt to convince a Judge to allow such evidence to be introduced into evidence. Mr. Everett cannot possibly believe that it is appropriate under North Carolina or Federal law for a prosecutor to withhold evidence tending to support the innocence of the accused merely because a Judge “may not allow the jury to hear this evidence.”

And, this is just the beginning of the outlandish contentions made by Mr. Everett. For starters, Mr. Everett seems to concede the fact that North Carolina and Federal law normally require the evidence in question to be turned over the defense. Mr. Everett, however, argues for some type of implied exception for evidence which a Court might not allow a jury to hear. Where does such an exception come from? Mr. Everett invents it without legal support or argument, in an apparent attempt to defend the indefensible.

Further, Mr. Everett’s contention that a judge might not allow the evidence to be introduced is suspect, at best. Mr. Everett fails to mention that there are effectively five exceptions to North Carolina Rule of Evidence 412. As a matter of Federal constitutional law, regardless of what North Carolina evidence law (or Federal statutory evidence law, for that matter) may provide, a Judge must normally allow the introduction by the accused of any evidence that is reasonably necessary for the accused to defend himself or herself. On that basis alone, the evidence would almost certainly be allowed to be introduced to a jury (and, if not, any conviction would be overturned).

The evidence in question is highly probative of innocence for at least three reasons:

1. If a rape occurred at all, especially since the accuser said that she had not had sex with anyone else for a week before the alleged rape, the defense could use the evidence to suggest that persons other than the accused may have committed the rape. For some strange reason, Mr. Everett has apparently concluded that the semen that was found on or about the accused must have come from the accuser’s consensual sexual activities. But that cannot possibly be known unless either i) no rape occurred, or ii) the “owners” of the semen in question have been identified and the accuser has conceded that she had consensual sex with the identified individuals. Unless Mr. Everett has access to non-public evidence, which if he had it should have been disclosed in the article to support an otherwise ridiculous assumption, item two has certainly not been established. That leaves Mr. Everett in the strange position of arguing, in effect, that he believes that the evidence of sexual activities with other men need not have been turned over to the defense because it is clear that no rape at all occurred.

2. The likely alternative to the semen belonging to the “true rapists” is that the accuser lied to the police in their investigation of the alleged rape (the alternative being, as I understand it, the extremely unlikely presence of DNA testable more than a week after sexual activity). While not conclusive on the issue of guilt, any lie made by the accuser in the course of the investigation of the crime in question certainly calls into question the accuser’s credibility.

3. Any consensual sexual activity engaged in by the accuser around the time of the alleged rape (which -- understatement alert -- the existence of semen from three to five other men would tend to suggest) would explain the mild “injury” (if you can call it that) noted by the nurse who first examined the accused as being “consistent with” a sexual assault. (As an aside, virtually any evidence of sexual intercourse is “consistent with” a rape having occurred. Indeed, the only thing that I can think of that would not be “consistent” with a rape having occurred -- in terms of a gynecological examination of the accuser -- would be an intact hymen.)

One matter which has escaped the attention it deserves is the fact that Mr. Nifong did not object at the December 15th public hearing or earlier to even the public dissemination of information concerning the semen found on the accuser or her clothing. Mr. Nifong has consistently conceded that the evidence of the existence of that semen was required to be given to the defense. His defense is rather (depending on the day), i) I never agreed with the lab director that this evidence was to be excluded from the report (State Bar Amended Complaint, paragraph 282), ii) I didn’t know about the existence of the evidence until the December 15th hearing, (stated or implied, depending on whether you agree that his statement to the Court was ambiguous) iii) I thought that the evidence had, in fact, been turned over earlier (State Bar Complaint, paragraph 287), or iv) he agreed with the lab director that the evidence should be excluded from the report because the of privacy concerns regarding the lacrosse players and other who had provided known reference samples (State Bar Complaint, paragraph 286).

Notably absent from Mr. Nifong’s myriad justifications is any contention that the evidence in question was not legally required to be turned over the defense. Faced with the loss of his license to practice law, why didn’t Mr. Nifong at a very minimum throw in the backup argument that “and besides, there was no legal obligation to turn over the evidence at all”? The reason should be self-evident. One hardly wants to defend oneself before the State Bar by making legal arguments so frivolous as to prove one’s incompetence to practice law.

It’s plausible that Everett’s H-S op-ed might have represented a trial balloon for a Nifong defense strategy in the pending ethics trial. If so, Nifong’s lawyers might want to go back to the drawing board.

Hat tip: T.S.