The Nifong Response

Broadly speaking, the Bar had made three charges against Mike Nifong:

(1) His inflammatory public comments violated Rule 3.8(f) of the bar’s Code of Professional Responsibility, which states that prosecutors must, “except for statements that are necessary to inform the public of the nature and extent of the prosecutor's action and that serve a legitimate law enforcement purpose, refrain from making extrajudicial comments that have a substantial likelihood of heightening public condemnation of the accused.”

(2) Some of these comments—particularly his speculation that condoms might have been used—constituted “conduct involving dishonesty, fraud, deceit, or misrepresentation.”

(3) The conspiracy into which he entered with Dr. Brian Meehan to withhold exculpatory DNA evidence violated provisions of both the state bar’s ethics code and at least three North Carolina laws.

Nifong’s defenses—offered both in a just-released letter by the defendant himself, dated December 28, and in a memorandum of law submitted yesterday by his two attorneys—are, to put it mildly, unconvincing. Moreover, it appears as if in the response, Nifong inadvertendly disclosed that he violated another provision of the bar's ethics code.

1.) Inflammatory Public Statements

This allegation primarily involves Nifong’s pre-primary publicity barrage, but also addresses some comments he made after securing indictments, such as his rambling e-mail to Susannah Meadows of Newsweek.

Nifong offers five lines of defense:

(a) All of his public statements were based on information he was fed by police or medical personnel;
(b) Rule 3.8(f) applies only after indictments have been secured, and can be trumped by other concerns;
(c) Rule 3.6, comment 7 supersedes Rule 3.8(f) when prosecutors so choose;
(d) He was naïve.
(e) The Bar should take his word when he says he didn’t intend to heighten “public condemnation of the accused.”

Nifong goes out of his way to implicate the police. Many of his inflammatory public statements, Nifong contends, were “consistent with matters of public record as outlined in the affidavit attached to the Application for Nontestimonial Identification Order.” So if he misled the public, it was because the police (or SANE nurse-in-training Tara Levicy) fed him misleading information.

Nifong argues that most of his statements “were made at a time when no individual suspects had been identified,” and therefore the requirements of 3.8(f) didn’t apply. Even if they did apply, he suggests, his statements had other motives: “to reassure the community that the case was being actively investigated by the Durham Police Department in an effort to obtain assistance in receiving evidence and information necessary to further the criminal investigation.”

These claims are absurd. Suspects had been identified—46 of them, through a nontestimonial order initiated by Nifong’s own office. As Duke Law professor Thomas Metzloff correctly noted, “There was an accused, and the accused was the Duke lacrosse team-a defined group of people, identifiable and defined by Nifong in having them all give DNA samples. There clearly was an accused in the sphere of the rule.” Moreover, Durham has a mayor, and a city manager, and a police chief, and a Police Department spokesperson, any or all of whom could have “reassured the community” or launched “an effort to obtain assistance in receiving evidence and information necessary to further the criminal investigation.” Nifong never explains why he had to fulfill this role (other than the obvious need of heightening his public name recognition before the primary).

As for statements made after he obtained indictments, Nifong claims that he was “entitled” to speak out “pursuant to comment [7] to Rule 3.6 of the Rules of Professional Conduct,” which states that “extrajudicial statements that might otherwise raise a question under this Rule may be permissible when they are made in response to statements made publicly by another party, another party’s lawyer, or third persons, where a reasonable lawyer would believe a public response is required in order to avoid prejudice to the lawyer’s client . . . Such responsive statements should be limited to contain only such information as is necessary to mitigate undue prejudice created by the statements made by others.”

This claim is, frankly, bizarre. Who was Nifong’s “client”? The accuser? The city of Durham? His political needs? His pension fund? Cy Gurney, his wife?

If the Bar won’t accept his legal reasoning, Nifong asserts naïveté: “Defendant further admits that at the time he made said statements that he did not fully understand the extent of the national media interest in this particular investigation and as such, he did not comprehend the effect said statements may have on any matters related to the case.”

That claim is absurd: the man who made famous the chokehold on MSNBC lacks the credibility to assert that “he did not fully understand the extent of the national media interest in this particular investigation.”

Then, finally, Nifong falls back on a laughable defense: he didn’t mean to do it. Nifong denies that any of his statements were “intended to heighten the public condemnation of an accused or that his actions were intended to heighten the public condemnation of an accused.” Nowhere in more than 40 pages does he provide any evidence to support his assertion.

This claim is absurd: the man who called the players “hooligans” and compared their “crime” to a cross-burning and a murder lacks the credibility to assert that he did not intend “to heighten the public condemnation of an accused.”

2.) “Dishonesty, Fraud, Deceit, or Misrepresentation”

This allegation chiefly involves Nifong’s repeated public suggestions that condom use might explain the lack of DNA evidence—even though the accuser not only never claimed her “attackers” used condoms, but specifically stated that they did not use condoms.

Nifong’s response was ingenious: “Defendant admits that the initial medical report indicates that the victim advised that a condom had not been used. However, based upon defendant’s experience, he has learned that a complaining witness rarely ever knows whether a condom was used in a sexual assault and as such, he denies any allegations . . . that his comments were misleading.”

I asked Kathleen Eckelt about the validity of Nifong’s assertion. She replied, “As far as the Duke case goes, I thought the accuser said from the beginning that no condom was used. As far as I can recall, I don’t think I’ve ever had a patient insist that no condom was used, then turn around and say that it was.”

3.) The DNA Conspiracy

The allegation here is that Nifong conspired with Dr. Brian Meehan to withhold exculpatory DNA evidence.

Before analyzing Nifong’s latest line of defense, it’s worth reviewing his previous explanations for his actions.

(1) He absolutely did not know about Meehan’s exculpatory test results: “The first that I heard of this particular situation was when I was served with these reports—this motion on Wednesday of this week.” (December 15, morning, in court)

(2) He absolutely did know about the results, but deliberately agreed to withhold the information for privacy reasons: “We were trying to, just as Dr. Meehan said, trying to avoid dragging any names through the mud.” (December 15, afternoon press conference)

(3) He might or might not have known about the results, but was overworked: “You know, it’s not the only case I have right now. I have two. The other one’s a quadruple homicide [which arrived in his office in mid-October].” (December 23, New York Times)

(4) He might or might not have known about the results, but, distracted by political concerns, did not provide them: “Because I had never previously been involved in a political campaign, and because I was facing an unusually contentious challenge from an unprecedented number of challengers [two!], I was not always able to give the case my full attention.” (December 28, Nifong letter to bar)

(5) He might or might not have known about the results, but, because of the incompetence of his underlings, did not provide them: “Due to the volume of material to be copied for each defendant . . . several individuals, including both attorneys and support staff, were involved in the numbering and copying of pages, which was not supervised by me. These people were . . . [not] familiar enough with the facts of the case to have known whether anything was missing.” (December 28, Nifong letter to bar)

(6) Since these incidents occurred in Judge Smith’s courtroom, and Smith neither sanctioned him nor filed an ethics complaint against him, his actions must have been acceptable. (December 28, Nifong letter to bar)

(7) He’s being held to a different standard than others: “For some time now, the ‘word on the street’ in prosecutorial circles has been that the North Carolina State Bar, stung by the criticism resulting from past decisions involving former prosecutors with names like Hoke and Graves and Honeycutt and Brewer, is looking for a prosecutor of which to make an example.” (December 28, Nifong letter to bar)

(8) People are out to get him: “A well-connected and well-financed (but not, I would suggest, well-intentioned) group of individuals—most of whom are neither in nor from North Carolina—have taken it upon themselves to ensure that this case never reaches trial. (And if this seems like paranoid delusion to you, perhaps you should check out websites such as former Duke Law School graduate and current Maryland attorney Jason Trumpbour’s www.friendsofdukeuniversity.blogspot.com/, which has not only called for me to be investigated, removed from this case, and disbarred, but has also provided instructions on how to request such actions and to whom those requests should be sent.)” (December 28, Nifong letter to bar)

So, which of these eight (8) previous defenses—some of which were mutually contradictory—would Nifong offer in his filing yesterday? None.

Instead, Nifong offered three new lines of defense:
(a) He didn’t have to turn over any material until a trial date was set;
(b) The one-sided nature of the report is irrelevant, since Nifong knew he would have to turn over the underlying data, which is easily understood;
(c) The issue is irrelevant, since he wasn’t required to turn over a “complete report,” at any stage of the process.

The first claim is amusing: it essentially says that Nifong believes he is free to misrepresent items to the court and to withhold evidence at will before a trial date is set.

Imagine how that philosophy would apply to poorer defendants, especially in a place like Durham where the prosecutors have enormous power in setting trial dates. It is a philosophy that effectively guts both the ethics code and the Open Discovery law.

The charge that he was attempting to conceal information through entering into an agreement with Meehan is non-credible, Nifong maintains, because “the underlying results of the tests and examinations performed by DSI would clearly provide that information to the Duke defendants.”

This assertion is almost comical. As an experiment, it would be interesting to force Nifong to go through 1800 pages of highly technical forensics data and see whether he could “clearly provide” the relevant findings.

Finally, at least four times, Nifong asserts that North Carolina’s Open Discovery law, the law governing NTO’s, and the Constitution all do not require the state to turn over “complete report.”

Consider the ramifications of that statement. Nifong maintains that as long as the state turns over underlying data, it can produce a report that is wholly one-sided. If defendants can afford top-rate attorneys to interpret the data, that’s fine. If they can’t, they’re out of luck. This, it’s worth reiterating, is the man the state NAACP has propped up for 10 months.

Intermingled in these responses is the damning paragraph 212, which states

At the time that defendant met with Dr. Meehan, he was focused on the question of whether evidence had been discovered that corroborated the victim’s photographic identification of the two indicted Duke lacrosse players as her assailants and whether there was any evidence to corroborate her near certain photographic identification of a third Duke lacrosse player as a third assailant. As such, as of the time of the meeting with Dr. Meehan as alleged in paragraph 212, his attention was not focused on whether trace DNA from individuals not members the Duke lacrosse team which was found on certain items tested would be material evidence which would affect the outcome of any subsequent trial. Defendant therefore denies that he made any conscious decision, at the times referenced in paragraph 212 of the Amended Complaint, as to whether trace DNA of individuals not members of the Duke lacrosse team was potentially exculpatory, as a trial date had not yet been scheduled in this matter and he was still investigating the facts of his underlying case and had not focused on whether this information was exculpatory.

This statement is an admission that Nifong violated Rule 3.8, whose comment 1 affirms that “a prosecutor has the responsibility of a minister of justice and not simply that of an advocate; the prosecutor’s duty is to seek justice, not merely to convict.”

In paragraph 212, Nifong admitted that he was not looking at all the evidence, including evidence of innocence; instead, he was looking solely for evidence to convict. Finally, a few extraneous items from the filing:

(1) Nifong accuses Sgt. Gottlieb and Capt. Lamb of being misinformed when, on March 24, they memorialized that he was now in charge of the investigation.

(2) Nifong denies seeing Dr. Meehan on April 10, to be informed that no DNA matches existed to Reade Seligmann or Collin Finnerty. Instead, he says this meeting didn’t occur until April 21. This claim contradicts recollections of Meehan, Gottlieb, and Himan; and Nifong didn’t challenge it in court during Meehan’s December 15 testimony.

(3) Nifong concedes that ADA David Saacks filed a motion stating that the DNA tests would exonerate the innocent, but “denies any inference that he was bound by representations made by subordinates in his office prior to his having knowledge of the case.” This is an extraordinary claim: carried to its logical conclusion, it would suggest that prosecutors’ offices all over the country could routinely make representations to the court and then, if the results didn’t come back in the preferred manner, have the DA take over the case personally and say he’s no longer bound by earlier filings.

The thesis of this filing: Nifong did nothing wrong, and if he gets the chance to engage in massive prosecutorial misconduct in the future, he’ll seize it. This is a man unethical to his core.