One of Eleven

Continuing its shameless defense of Mike Nifong’s behavior, the Herald-Sun ran an editorial yesterday all but begging the state bar to give Nifong a slap on the wrist. Maybe he withheld evidence, and maybe he gave improper statements to the media, suggests the H-S. But “Nifong says the defense now has the evidence, so no harm was done,” and “he has said, in retrospect, he should not have talked so much,” so he is contrite. If these improper statements were critical to his winning election . . . well, that’s how the cookie crumbles.

Looking at the Gell and Honeycutt cases, the H-S reasons, “In both cases, prosecutorial misconduct robbed defendants of years of their lives. For their misdeed the prosecutors were punished by taps on the wrist—or nothing at all. Nifong certainly made mistakes, as he concedes, but no one has been wrongly convicted, and no trial has been held.”

In other words: Nifong’s misconduct was exposed at an earlier stage than in the other trials, so he, too, should receive a minimal punishment.

The H-S editorial reflects Nifong’s new talking points on the DNA: he handed over the evidence as he was supposed to do, and the only reason the defense even knew about the incomplete Meehan report (which contained no mention of the many other unidentified male DNA in the rape kit) was because Nifong supplied the evidence. As Nifong bizarrely, and inarticulately, explained in his December 28 letter to the bar, the defense “complaint can be summed up as, ‘We know they did not give it to us because they gave it to us.’”

This argument forms one of the eleven separate, and often mutually contradictory, explanations that Nifong has given for his failure to turn over the DNA evidence. It rests on a basic assumption: that even if Nifong were not compelled to turn over a complete report under the law (an incorrect assumption), he willingly turned over to the defense the underlying data regarding Meehan’s tests, and so the defense could have discovered Meehan’s withheld results by spending sufficient time studying the “clearly understood” data.

To address the merits of this claim, it’s worth going back to the September 22 hearing. Far from revealing a district attorney eager to provide the underlying DNA data to the defense, the hearing transcript suggests the reverse. Nifong’s response to the defense request for the data:

First, I have to note the irony . . . of the defense attorneys seeking information that is what we call the witch-hunt list for DNA testing, all of the ways that you can attack DNA testing to show that it’s unreliable or was done poorly in this instance. Because on every occasion where rhe results of these tests were provided to the defense attorneys, they called press conferences and told everybody who would listen that the DNA absolutely exonerated every person involved in this case.

So it’s interesting now that they are trying to get the information to dispute those results.

After suggesting an improper defense motive for requesting the data, Nifong addressed the request for the data from Meehan’s lab. He read a letter from Meehan discussing the need to “protect the privacy of these [unindicted] individuals in a very high-profile case.”

Nifong concluded by offering a third objection to the defense request: cost. “These are attorneys,” he fumed, “who are already on record as saying these tests cleared their clients. And now they want to spend an additional $4035 of the state’s money to investigate further.”

Bannon responded by noting that the 6^th amendment did not have a cost limitation; Judge Osmond Smith ordered Nifong to produce the DNA data by October 20. The D.A., for reasons that remain unclear, failed to turn over the material until the October 27 hearing.

Despite Nifong’s recent claims—echoed by the H-S—the September 22 transcript suggests that the D.A. did everything he could to avoid turning over the underlying DNA data to the defense.

The transcript of the September 22 hearing contains one other interesting item. Here’s a quote from Brad Bannon, asking for a memorialization of Nifong’s discussions with Brian Meehan:

We received a report of the SBI’s testing on April 10 in this case. And actually that same day, on April 10, Mr. Nifong and Inv. Himan and Sgt. Gottlieb all went to the DNA Security, Inc. lab in Burlington, which was the private lab they had retained to do testing in the case.

Nifong’s reply?

We discussed with [Meehan] why we wanted [YSTR testing] done in this case and he assured us he could do it . . . They [defense lawyers] apparently think that everybody I speal to about, I talk about the facts of the case. And that’s just, that would be counterproductive. It did not happen here. We told [Meehan] why we wanted the YSTR testing done. He gave us the report at a later date. We told him how we intended to use it at trial.

Bannon pressed, wanting to be sure that “Mr. Nifong is representing that the facts of the case weren’t discussed in those meetings.” Nifong: “That is correct. The facts of the case, other than the fact that we were seeking the male fraction DNA,” were not discussed.

So, on September 22, Nifong appeared not only to remember the April 10 meeting, but to recall what was and was not discussed in that meeting. What could account for his sudden memory loss between then and his December response to the bar?