A Tangled Web

Few offenses are more serious among lawyers than lying to the Bar. Accordingly, the Bar’s accusing Mike Nifong of this offense (in his assertion that privacy concerns motivated his entering into an agreement with Dr. Brian Meehan to intentionally withhold exculpatory DNA evidence) was noteworthy.

It would seem almost certain that Nifong’s response to the Bar’s amended complaint continued his pattern of making false and misleading claims to the organization. The issue, in this case, is the April 10 meeting between Meehan and Nifong.

It’s easy to see why Nifong would like to pretend this meeting never occurred: given Meehan’s revelations that he told the D.A. of multiple, unidentified males on the accuser’s rape kit, the meeting’s existence strongly suggests malicious prosecution—that Nifong went to the grand jury fully aware that the two people he wanted to indict had to be innocent. This was, after all, the same man who had exonerated a rape suspect in 2000, when the DNA showed presence of only one other man.

It is unclear whether, if at all, Nifong attorneys David Freedman and Dudley Witt fact-checked the D.A.’s January 16 letter to the Bar in which he first claimed that he did not attend this April 10 meeting. In the January 16 letter, after all, Nifong appeared to admit that the meeting occurred.

It seems perfectly clear, however, that neither Freedman nor Witt reviewed the transcripts of each of the case’s six hearings. After all, as a recent Liestoppers post observed, in the second hearing of the case, which occurred on June 22, Nifong publicly commented upon

a report of the meeting on April 10, 2006, among you, referring to me, Investigator Himan, Sergeant Gottlieb, and Brian Meehan of DNA Security, Inc. At this particular meeting, Your Honor [Ron Stephens], we were given copies of the DNA Security report, which has previously been furnished to the defense team, and we discussed how we would be using those items and that report and that investigation at trial. Those items are not discoverable, no report has been generated. The report itself they have. The discussions are not available.

Then, in responding to a question from Joe Cheshire, Nifong affirmed again what he, Gottlieb, and Himan did at the meeting: “We received the reports, which [Cheshire] has received, and we talked about how we would likely use that, and that's what we did.”

Cheshire asked Nifong’s former boss, Judge Stephens, to require Nifong to memorialize the conversation and turn over the document to the defense. Stephens denied the motion. The defense attorney then asked Stephens to compel a Nifong memo that would be held in camera, pending a possible appeal. Stephens again said no.

There are, in short, only two ways to interpret the June 22 transcript:

• Nifong lied to the bar in his January 16 letter.

• Nifong lied to Stephens by offering a detailed description of a meeting that, in fact, never took place.

Given the significance of the April 10 meeting, how could Nifong have been caught flat-footed by Cheshire’s discussion of it? The context of the hearing explains why. In June, the key issue was not when Nifong met with Meehan, but whether the court would force the district attorney to memorialize two conversations—his April 10 meeting with Meehan, and his April 11 meeting with the accuser—and turn over additional items from what appeared to be an incomplete rape kit.

At the time, the rape kit issue was far more controversial, and the April 11 conversation with the accuser loomed as by far the more significant of the two debated meetings. On the rape-kit question (the defense had asked why several sections on the rape kit form had not been supplied), the district attorney decided to provide a lecture, suggesting that the request “represents a lack of understanding on the part of the defense team about exactly how sexual assault reports are made . . . The only things that become the basis of the written report are the ones that have been furnished. And people who don’t do a lot of rape cases probably don’t know that.” (Cheshire tartly replied, “Amazingly enough, I have tried a few rape cases in my 33 years.”) Stephens accepted Nifong’s word that no more information existed.

Meanwhile, on the conversations, Nifong focused most of his effort on explaining why the reliably pro-prosecution Stephens should not require Sgt. Gottlieb, Inv. Himan, Lt. Ripberger, or him to memorialize what the accuser did or did not say in their April 11 meeting. “It was not a meeting,” Nifong declared, “to discuss the specifics of the evidence in this case. Other matters were discussed, which, again, are not matters that are subject to discovery.”

But the D.A. could not appear wholly uncooperative—hence his decision to provide some details on the meeting he considered less important, the discussion with Meehan, and why the items discussed in that meeting likewise didn’t have to be turned over to the defense.

At the time, Nifong probably celebrated his strategy as clever: he received fairly good press, especially from the New York Times and Herald-Sun, from the June hearing, and Stephens made sure he didn’t have to disclose anything.

The problem, however, with constructing a case upon a tissue of procedural violations is that decisions taken at earlier stages can have haunting effects later on. So, it appears, was Nifong’s decision to share with the world the details of an April 10 meeting that he has now denied to the Bar ever took place.