Nifong's Flailing Response

Overshadowed by yesterday’s performance of “The Uncooperative Miss M”—in which the same accuser who had no problem hurling charges to a newspaper reporter shielded by the veil of anonymity now is, apparently, refusing to deal with prosecutors who might ask her hard questions—Mike Nifong’s attorneys filed a new brief yesterday urging the dismissal of some of the ethics charges against him. If this is the best case his attorneys can offer, the D.A.’s chances of keeping his license would seem very slim.

When last heard from, attorneys for the disgraced D.A. challenged the bar’s ethics complaint by alleging:

• While Nifong did make all but one of the comments attributed to him by the Bar, these comments didn’t violate the ethics rule against heightening “public condemnation of the accused” –either because the 46 white lacrosse players identified as suspects by his own office, the DPD, and even Durham CrimeStoppers weren’t really suspects; or because the police fed him inaccurate information; or because he was entitled to offer assertions about their guilt to counter unspecified defense misstatements of fact;

• A district attorney isn’t compelled to turn over a “complete report,” at any stage of the process, and can instead produce a report listing only those tests results favorable to the state; and if the defense can’t understand the underlying data the state unwillingly provides, that’s too bad.

• Nifong has no memory of the April 10 meeting between himself, Meehan, Gottlieb, and Himan, even though that meeting was referenced by: police notes; Meehan’s December 15 testimony; Nifong’s own January 16 letter to the Bar; and Nifong’s own comments at the June 22 hearing.

• Despite the bar’s requirement that he function as a “minister of justice,” Nifong failed to examine all of the evidence presented by Meehan, and was instead searching only for evidence that could convict a Duke lacrosse player.

Nifong’s new response consists of four sections, and could serve as an example of how lawyers attempt to handle a case where the facts aren’t on their side.

1.) Nifong’s actions didn’t violate the Brady rule.

The longest section of the response—more than four pages—explains why Nifong’s actions didn’t violate the U.S. Constitution, and specifically the Supreme Court’s Brady decision, which requires prosecutors to hand over all potentially exculpatory evidence.

While an intriguing theoretical argument, the tactical wisdom of this approach seems hard to determine: in a 291-paragraph ethics complaint, the Bar mentioned the Brady issue in a grand total of two paragraphs, in which the alleged Brady violation was listed as merely one among many Nifong ethics violations. So, even if the argument presented by Nifong’s attorneys were correct, it would do virtually nothing to weaken the Bar’s case.

2.) Nifong’s actions didn’t violate the Open Discovery statute, because the defense received the relevant information before a trial occurred; and, in any case, Nifong turned over everything he had.

Nifong first floated this line of argument in his December 28 letter to the Bar. In yesterday’s filing, his attorneys reasoned,

In short, the allegations contained in the Amended Complaint reveal that after receiving an initial report from Dr. Meehan [on May 12], Nifong provided that report to the Duke defendants, and after receiving the underlying data from Dr. Meehan, Nifong provided that data to them as well [on October 27, one week later than the court had told him to do so].

Nifong’s lawyers neglected to mention one aspect of the story: that Nifong met with Meehan (at the now-forgotten April 10 meeting and, by his own acknowledgment) twice thereafter; and that, according to Meehan’s own testimony, Nifong and Meehan entered into an agreement to produce a report that intentionally withheld exculpatory evidence.

The Nifong line of argument therefore appears to be: prosecutors should conspire to produce one-sided expert reports, promptly turn these incomplete reports over to the defense, and hope that the defendants agree to a plea bargain. If the defendants insist on a trial, then and only then should the prosecutor turn over the whole report.

This—it’s worth remembering—is the prosecutor whose conduct has been championed by the state NAACP.

3.) Neither Nifong nor any other law enforcement official was required to produce notes of their discussions with Dr. Meehan; therefore, their failure to do so wasn’t an ethics violation.

Nifong’s attorneys concede that North Carolina law requires prosecutors to turn over all “statements” to the defense. But, harking back to Bill Clinton’s defense—“It depends on what the meaning of the word ‘is’ is”—they posit that Nifong should be exonerated of the charge because the statute “failed to specifically define what the term ‘statement’ encompassed.”

This reasoning would effectively gut the Open Discovery law, since prosecutors could simply withhold statements at will by claiming that they weren’t really “statements.”

Perhaps recognizing that the Bar is unlikely to endorse this claim, the Nifong lawyers offer a second argument: Nifong’s discussions with Meehan were attorney “work product,” and therefore not discoverable. This line of defense likewise stands little chance of success: if allowed, it would suggest that prosecutors could routinely enter into agreements with expert witnesses to withhold exculpatory evidence, but then refuse to report the results of such discussions on the grounds that creating the conspiracy was part of the normal job of a prosecutor.

4.) Nifong didn’t violate the North Carolina law requiring that the subjects of a Non-Testimonial order be supplied with a copy of reports of the test results from the NTO because . . . well, because Nifong says so.

In contrast to the four-plus pages the Nifong response devotes to the Brady question, the response addresses this issue—where, it would seem, the Bar has Nifong dead to rights—in two cursory paragraphs.

Nifong again invokes the Clintonian defense: “The statute does not set out any specific format in which the ‘report’ must be; only that the information must be provided to the subject.”

A reader e-mailed me yesterday to report that in this week’s online column, NCSpin.com reports that the word around Raleigh is that Nifong is “sweating bullets regarding the NC Bar charges and is trying to negotiate a settlement.” After reading his attorneys’ filing, I can understand why Nifong is so nervous.

Hat tip: K.W.