Nifong's Continued Evasions

Liestoppers just posted a copy of Mike Nifong’s January 16 response to the Bar, the D.A.’s last, desperate attempt to avoid the Bar’s amended and expanded January 25 complaint. While not as delusional as his December 28 letter (the document that concluded by attacking Jason Trumpbour and Friends of Duke University), Nifong’s January 16 missive continued his pattern of evasive responses, non-denial denials, and peculiar conceptions of his duties as district attorney.

By the time he wrote this document (which, oddly, appeared on the official stationery of his office, a violation of professional norms), Nifong had hired counsel and had recused himself from the lacrosse case. He also had offered no fewer than six separate excuses—ranging from a stated concern with the privacy of players he had labeled “hooligans” to the demands of running for office while also serving as district attorney—for his failure to turn over the DNA evidence.

The highlights of the January 16 document:

1.) A “summary” report need not contain all test results; and, indeed, can be confined to those results that the prosecution desires to report.

Nifong asserted that the Meehan report “was a summary report, which I would define as a report that states what tests were performed and either lists all positive results (i.e., those in which something is revealed) or states that there are no positive results.”

Alarmingly, the district attorney states that this type of report has “always” been the type that he has requested “in my 28+ years as a prosecutor,” that Meehan’s was “the type of report with which I have always dealt in cases involving forensic testing.” This admission begs the question of whether Nifong has engaged in games of hide-the-evidence previously.

2.) No law enforcement official from Durham took any notes at any point during any meeting with Meehan.

In an astonishing claim, Nifong asserts that he, Sgt. Mark Gottlieb, and Inv. Ben Himan drove to Meehan’s Burlington lab on at least two occasions, sat across the table from the lab director for over an hour in total, and that none of them ever wrote anything down about what they discussed with Meehan. Why, then, did the three of them even bother to make the trip—or is Nifong contending that all three have photographic memories, and would be able to recall the key details of the conversations months later, when the trial began?

This, it seems, is the Durham Police Department’s response to North Carolina’s Open Discovery statute: since all notes now must be turned over to the defense, just don’t take any notes.

3.) Nifong used the January 16 letter to offer what was then his seventh excuse for withholding the DNA evidence.

Nifong admits that he knew of the presence of DNA traces from multiple males. But, he told the Bar, “the specific fact that the May 12 report from DNA Securities did not contain any information about the presence of partial DNA profiles who were not members of the Duke lacrosse team (which would not be a negative result), however, failed to register with me at all at the time I received the report.”

In other words, it seems the district attorney believes that state law requires disclosure of “positive” and “negative” test results, but not of test results that the D.A. and private lab directors decide between themselves are neither “positive” not “negative.” Nothing in the relevant statutes, however, seems to justify that interpretation.

A side comment: perhaps Meehan’s failure to file a complete report would have “registered” with Nifong had he or a police officer taken notes at their meetings with Meehan, so he could have compared what Meehan told them with the document that Meehan submitted on May 12.

4.) Nifong has conceded another ethics violation.

Rule 3.8, 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.”

Yet in his January 16 letter, Nifong states that at one meeting with Meehan, he was functioning solely as an advocate, seeking not justice but evidence to convict. He states that his purpose at the April 21 meeting—which he asserts, contrary to the recollections of all other participants, was the first time he met Meehan—was to determine whether Meehan’s test results would help him establish “conclusive identification of the third assailant.”

Evidence that exonerated the two people he already had indicted, Reade Seligmann and Collin Finnerty, appeared not to interest him. Evidence that cast doubt on the accuser’s myriad tales as a whole appeared not to interest him. His explanation for this peculiar approach?

“I knew that testing had not yet been completed on other evidence items . . . I also knew that all test results, and the underlying data from those tests, would be provided to anyone who was indicted as a defendant in this case upon request.”

This passage previewed paragraph 212 of Nifong’s official response to the Bar’s complaint, which conceded that his interest was solely in evidence that related to his theory of the crime.

5.) If true, Nifong’s explanation for the April 10 non-meeting suggests an improper conception of his duties.

Given that Meehan, Himan, and Gottlieb all contend that Nifong was present at a meeting of which he has no recollection (again, this is why people take notes), it seems very likely that the D.A.’s sudden memory loss will not carry the day.

But let’s take Nifong at his word, with his new claim that he did not meet with Meehan until April 21, or four days after he obtained indictments against Seligmann and Finnerty. He had taken the unusual approach of seeking additional tests from a private lab after the state lab didn’t return the results that he wanted. He claims that he was interested in receiving from Meehan “evidence that either directly implicated or specifically exonerated anyone.” Assuming that he first encountered Meehan on April 21, Nifong had no way of knowing, in advance, what Meehan’s test results would reveal. For all he knew, Meehan’s test results could show DNA matches between items in the accuser’s rape kit and three lacrosse players other than the ones he had indicted.

Given that fact, what legitimate law enforcement purpose did he have in seeking to obtain indictments before (as he now claims) meeting with Meehan to review the results of Meehan’s tests? Nifong obviously had a political motive for acting as he did: he needed to obtain indictments before the primary.

It’s little wonder after receiving this document that the Bar proceeded with such a powerful amended complaint.