January 16: Admitting Guilt?

Mike Nifong’s January 16 response to the Bar contains one particularly astonishing assertion. Relying on the transcript of the December 15 hearing, Nifong denied any suggestion that he entered into an agreement with Brian Meehan to intentionally withhold exculpatory DNA evidence.

After citing two quotes from Meehan, district attorney asserted,

A fair reading of the totality of Dr. Meehan’s testimony reveals that the concern over privacy matters originated with him, that he sought to provide a report that would both meet the State’s needs and allay those concerns, and that the way he balanced those competing interests was not dictated by my instructions. [emphasis added]

Does Nifong believe that the Bar is unable to consult the record of the December 15 hearing? Among other revelations by Meehan, the transcript includes the following:

DR. MEEHAN. It is true that we did not release the full profiles of all the players in this case. And I did that after discussions with Mike Nifong because of concerns about getting those profiles out into the public media. (p. 23)

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DR. MEEHAN. Now, had the client himself, Mr. Nifong . . . request[ed] that additional information, we would gladly supply it. (p. 24)

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DR. MEEHAN. But if it were a full profile and did not match any of . . . the reference specimens, our client, Mr. Nifong, specifically wanted . . . to know, “Do any of the reference specimens match any of the evidence?” And that’s the report that we gave him. (p. 30)

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DR. MEEHAN. This report was a specific report at the request and in discussions with Mr. Nifong that we would report only specimens that matched evidence items. (pp. 59-60)

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DR. MEEHAN. Mr. Nifong agreed with me that it was okay to do this. (p. 61)

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DR. MEEHAN. Mr. Nifong agreed that it was okay to report the evidence items and reference items that matched.

MR. BANNON. But at the same time, he knew that there were male DNA characteristics on some of those rape kit items that didn’t match reference swabs, correct?

DR. MEEHAN. I would have to assume that he did know that, right. (p. 61)

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DR. MEEHAN. We limited the scope of this report to only that evidence that, in my words, in my terms, was probative. All right. That being the evidence, as it says on the report, that matches suspects to evidence. (pp. 64-65)

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DR. MEEHAN. We would be glad to provide a more thorough report, a report of every single profile upon the request of our client as was indicated on this report . . . Mr. Nifong is our client and had he said, “Listen, I want a report on everything,” that’s what we would produce. (p. 65)

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MR. BANNON. You didn’t include the results for each DNA test in your report dated May 12; is that correct?

DR. MEEHAN. That’s correct.

MR. BANNON. So you violated this protocol of your own lab?

DR. MEEHAN. That’s correct.

MR. BANNON. And you violated this protocol of your own lab because the district attorney told you to; is that correct?

DR. MEEHAN. No. It’s not just because the district attorney told me to. [emphasis added] (p. 66)

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DR. MEEHAN. We agreed with Mr. Nifong that we would report just the stuff that matched so that it would, so the report was limited in its scope . . . and by the letter of the law, by the letter of the wording of the standard, you’re [Brad Bannon] absolutely correct. It diverges from the letter of that standard, okay. (p. 66)

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MR. COONEY. Did your report set forth the results of all of the tests and examinations that you conducted in this case?

DR. MEEHAN. No. It was limited to only some results.

MR. COONEY. Okay. And that was an intentional limitation arrived at between you and representatives of the State of North Carolina not to report on the results of all examinations and tests that you did in this case?

DR. MEEHAN. Yes. (p. 85)

Can Mike Nifong seriously maintain that the totality of the above record suggests that he and Dr. Meehan did not enter into an agreement to intentionally withhold exculpatory DNA evidence? It is as if, in the exchange above, Nifong wants the Bar to believe that Meehan really said "no" to Cooney’s question.

Another exchange is of particular relevance in analyzing Nifong’s January 16 reply to the Bar:

MR. BANNON. But you only wrote a report about some of those pieces of evidence, correct?

DR. MEEHAN. That’s correct.

MR. BANNON. And is that because Mr. Nifong told you to write the report that way?

DR. MEEHAN. I don’t think he told me specifically to write it that way. I think we were in agreement that the alternative would have been, as I said earlier, to produce names and profiles of everybody in the case. (p. 60)

In his January 16 missive, Nifong cited the passage above as proof that he did not enter into an agreement with Dr. Meehan to intentionally withhold exculpatory evidence. He did so, however, with one minor . . . modification.

Nifong wrote, “Dr. Meehan responded, ‘I don’t think he told me specifically to write it that way.’”

The district attorney neglected to include the second sentence of Meehan’s reply:

I think we [Meehan and Nifong] were in agreement that the alternative would have been . . . to produce names and profiles of everybody in the case.

In other words, Nifong didn’t “instruct” Meehan to withhold the exculpatory evidence. He just was “in agreement” with Meehan on the need to withhold the exculpatory evidence.

Is it any wonder that the Bar produced such a vigorous amended complaint on January 25?