The Bar's Devastating Response to Nifong

The N&O has posted the Bar’s response to Mike Nifong’s memorandum of law to dismiss some of the ethics complaint against him. It astutely describes the Nifong memorandum as asking the Bar “to undertake statutory construction, interpretation of case law, and semantic hair-splitting.”

A basic summary.

1.) Nifong’s defense appears geared more toward possible criminal allegations than to answering the Bar’s complaint that he violated the Rules of Professional Conduct.

In its response, the Bar notes that Rule 3.8 requires a prosecutor to disclose all evidence in a timely fashion, and that “a prosecutor’s compliance or non-compliance with statute, constitutional provision, or court order is not determinative of whether disclosure under former Rule 3.8 was ‘timely.’” In other words, Nifong’s memorandum is attempting to prove that the DA didn’t violate the Constitution when he entered into an agreement with Dr. Meehan to withhold exculpatory evidence. Yet he doesn’t even try to address the question of whether his behavior violated the Bar’s rules.

Indeed, the Bar contends that Nifong’s conduct regarding the DNA evidence (along with the arguments presented in his defense) violate the “plain language” of North Carolina law. Under the statute, the Bar’s response observes, “the issue is not whether a defendant is able to surmise—from a massive amount of raw data—whether the expert uncovered potentially exculpatory evidence, but whether a ‘report of the results’ was furnished to the defendant by the State.”

2.) A report is a report.

The Bar’s response dismissed Nifong’s absurd argument that in handing over—months after the fact and under court order—the underlying data from Dr. Meehan’s DNA tests, he was complying with a statutory requirement to hand over a report on all tests performed by expert witnesses of the state.

3.) Nifong’s no-trial rule makes no sense.

The response also dismisses Nifong’s “proposed bright-line rule” that because no trial date had been set, he didn’t have to turn over the exculpatory evidence. As the Bar notes, “This argument conflates the issue of whether a constitutional violation occurred with the issue of whether such a violation is grounds for reversal of a conviction.” Nothing in the Rules of Professional Conduct suggest that the rules kick in only once a judge sets a trial date.

4.) Nifong fails his own constitutional test.

In a devastating passage, the Bar notes that Nifong misread a Supreme Court decision—United States v. Argurs—that figured prominently in his memorandum. In Argurs, the Bar noted, “the U.S. Supreme Court carefully distinguished between situations in which the defendant makes either a generic request for exculpatory matter or no request at all, and instances “in which specific information has been requested by the defense,” and that “when the prosecutor receives a specific and relevant request, the failure to make any response is seldom, if ever, excusable.” In this case, of course, the defendants repeatedly requested the DNA material, Nifong repeatedly denied that any more test results existed. Nifong, therefore, violated with Argurs test—the very test his own memorandum had proposed—and with it, violated the Constitution.

5.) Lying to the court ought not be rewarded.

The Bar takes strong issue with Nifong’s argument that because both Judge Stephens and Judge Smith didn’t order him to memorialize his conversations with Dr. Meehan, neither he nor any other law enforcement official had to do so. “It is worth noting,” the response correctly recalls, “that the content of each Order was based on Nifong’s misrepresentations to the Court as alleged in the Amended Complaint. Therefore, Nifong is effectively arguing that he can make false statements to a court which result in the entry of an order, and then use the order that is based on his misrepresentations to claim he committed no discovery violation.” Such an approach would undermine the system of justice.

Nifong, in short, is arguing that his “successful deception of the Court” immunized him from any future ethics charges for his having lied to the Court in the first place.

6.) Nifong is still violating the law.

As the Bar’s response points out, North Carolina law “is unambiguous: Anyone subject to an NTO must be given any report of test results as soon as such a report is available.” Yet as of today, Nifong has never provided the relevant information to the 43 unindicted players, and he certainly didn’t provide it to the three indicted players as soon as the information was available.

In devastating fashion, the Bar concludes that Nifong wants the Disciplinary Hearings Commission to conclude “that it violates none of the Rules of Professional Conduct for him to:

(1) discuss and be keenly aware of potentially exculpatory DNA test results and direct or agree that those results would not be contained in a report provided to indicted defendants and other named suspects, and

(2) successfully and repeatedly deceive courts into entering orders finding falsely that he had had no previous discussions about these potentially exculpatory DNA test results, because . . .

. . . over five months later and pursuant to a court order to compel, he ultimately provided the defendants almost 2,000 pages of underlying data without any report. In essence Defendant argues that, court orders and very specific discovery requests notwithstanding, he had absolute discretion to withhold potentially exculpatory information of which he was fully aware until some unspecified time prior to trial without violating the Rules of Professional Conduct. Defendant’s contention that he was under no obligation to provide the information because no trial date was set necessarily implies that he was also entitled to withhold and never disclose potentially exculpatory information in any case that settled prior to trial. These precepts, if accepted, would apply not only to Defendant but to all other prosecutors and must be rejected.

Unanswerable.