The Nifong Preliminary Hearing

Yesterday’s Disciplinary Hearings Commission hearing gave Mike Nifong’s attorneys an attempt to practice some of their arguments for the June ethics trial. Based on what I saw, they have a lot of work to do between now and then to salvage the DA’s law license. Some impressions of yesterday’s events:

1.) Nifong’s lead attorney, Dudley Witt, needs to return to the drawing board.

Although Witt claimed he wanted a narrow dismissal of minor elements of the Bar’s charges against him, he was in fact searching for something more. The intellectual foundation of Witt’s argument was that unless the Bar could prove that Nifong either violated a specific North Carolina statute or the US Constitution, the Bar could not claim that the DA violated Rule 3.8(d).

This rule requires all prosecutors to, “after reasonably diligent inquiry, make timely disclosure to the defense of all evidence or information required to be disclosed by applicable law, rules of procedure, or court opinions including all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense.”

As DHC chairman Lane Williamson repeatedly pointed out in exchanges with Witt, the wording above contains no provision suggesting that its provisions don’t apply if a trial does not occur; or that requires the Bar to prove the defendant violated either a North Carolina law or the US Constitution for the rule to have any effect.

2.) Witt’s tortured definition of the rule doesn’t help Nifong in any case.

You would think a lawyer who pursues the strategy offered by Witt at least would do so because his or her client had clearly broken no law. Yet there seems to be little question that Nifong has violated North Carolina Gen. Stat. § 15A‑282. That law states that “a person who has been the subject of nontestimonial identification procedures or his attorney must be provided with a copy of any reports of test results as soon as the reports are available.”

Witt repeated Nifong’s longstanding claim that in belatedly providing more than 1800 pages of underlying DNA data to the three falsely accused lacrosse players, the DA complied with the statute’s reporting requirement.

Yet it was not three but 46 Duke students that were subjected to Nifong’s NTO order. If Nifong truly believed that his October data dump represented the “report” he needed to provide to all NTO subjects, on October 27, 2006, he would have provided the attorneys for all 46 of the players subjected to the NTO a copy of his “report.”

Of course, he didn’t do so then—and still hasn’t done so to date. Only when charged with ethics violations did the DA bizarrely claim that his data dump was the “report” the law required him to give to all 46 players.

3.) The chair of the commission, Lane Williamson, is an impressive figure intellectually.

Williamson conducted the hearing as if he were running a law school seminar (with Witt as a student who didn’t quite get the lesson). As Witt suggested that no firm guidance existed regarding the kind of chares that Nifong faced, Williamson produced a case that neither side had brief but which seemed remarkable on point. In the Matter of Attorney C (Colorado, 2002); “If the exculpatory evidence is material, then the prosecutor must disclose that evidence in advance of the next critical stage of the hearing.” The chair noted, “I think that gives pretty good guidance.”

When Witt tried to claim that there “were not any critical proceedings in the criminal case” between the formation of the Nifong/Meehan conspiracy and its ultimate revelation, Williamson shot him down: “Why can’t any one of those [June, July, or September hearings] be considered a critical stage of the case”?

Some of Williamson’s better lines:

• “We’re not dealing with expert discovery; we’re dealing with it as an adjunct as to the duty to disclose exculpatory evidence.” Rule 3.8(d) “is pretty straightforward”—prosecutors must make timely disclosure.

• Witt was engaged in “almost a medieval scholastic argument to argue is there a constitutional violation if there’s no trial?”

• “An uncharitable person would say that if [Nifong] were trying to hide the evidence that the DNA evidence did not match any of the lacrosse players under suspicion but also that there were other guys’ DNA, you would do exactly that—you would dump the information.”

• On the DNA, “we’re not talking about the nuances of the science here . . . absence of evidence is not evidence of absence, but here, knowing that there was DNA testing that shows evidence of other people, that is evidence of absence.”

And when Witt half-heartedly resurrected Robinson Everett’s assertion that perhaps rape shield statutes could justify Nifong’s unilaterally withholding exculpatory evidence, Williamson interrupted to shoot him down. Everett’s explication, the chair noted, is “preposterous.”

4.) Lawyers Matter

I have been spoiled over the last several months watching brilliant attorneys like Brad Bannon, Jim Cooney, and Joe Cheshire in action. Dudley Witt, to put it mildly, is no Joe Cheshire. He struggled to depart from his script in response to Williamson’s peppering questions, and generally did little to impress. Perhaps no lawyer could win with a client as weak as Nifong, but Witt seemed to be going through the motions.

The Bar’s Katherine Jean, on the other hand, showed an ability to think on the fly. Picking up on Williamson’s citation of the Colorado case, she astutely contended that by any measurement, at least two “critical stages” (namely, the April and May indictments) passed between Nifong learning of the exculpatory evidence and his eventual October data dump.

Finally, one lawyer was a particularly powerful presence at yesterday’s event. Brad Bannon’s cracking of the DNA conspiracy set in motion the chain of events that culminated in yesterday’s hearing. Bannon himself attended the hearing. And Nifong’s attorneys suggested what could be termed the “Bannon Rule”—that the state experts should be allowed to produce reports that cherrypick evidence and only include material favorable to the state. (The state has experts, the defense has experts, and both can set themselves, said Witt, to figuring things out: “this is part of the adversarial process.”)

This system would work, I suppose, as long as Brad Bannon could be farmed out to every defendant in the state to figure out what the prosecutor’s experts had tried to conceal.

(By the way, for those interested, Bannon and Cooney made posts last night at the Liestoppers forum.)

5.) Previewing Events to Come

Williamson repeatedly asserted that “intent is important here.” The only way to evaluate that point, he noted, was for the trial to hear testimony from Meehan and from the Durham police officers who were present for the Nifong-Meehan hearings. This promise no doubt chilled the temper of Sgt. Mark Gottlieb and Inv. Ben Himan.

Also, Williamson obtained an admission, once and for all, that Nifong knew of the exculpatory DNA evidence in April. He had the following exchange with Witt:

Williamson: “I believe your answer admits that Mr. Nifong knows from his meeting with Dr. Meehan that Mr. Nifong knew that there were positive results from the other individuals.”

Witt: Yes, that’s correct.

Meanwhile, it remains to be seen whether the Bar will take the next logical step and amend its complain in light of Roy Cooper’s unequivocal statement that the players were innocent, and no evidence existed (apart from an accuser’s myriad, mutually contradictory stories) to justify the charges.

Rule 3.8(a) of the North Carolina State Bar Rules of Professional Conduct states that a prosecutor shall “refrain from prosecuting a charge that the prosecutor knows is not supported by probable cause.”

The burden of proof under Rule 3.8(a) is high. But the wording of the rule—“refrain from prosecuting”—makes clear that it applies not merely to the decision to indict, but the decision to continue prosecuting a case. Regardless of what Nifong may or may not have believed on April 17, then, Cooper’s remarks left little doubt that Nifong was in violation of this rule by the time he recused himself from the lacrosse case.

6.) Atmosphere

I last saw Nifong in person on December 15; he looked much different yesterday. Considerably thinner, pale, and gaunt, he spent most of the hearing frowning, with his hands clasped, staring straight ahead, with his eyes rapidly blinking in an occasional nervous tic (he displayed similar behavior in the December hearing). The arrogance, bluster, and false bravado had dissipated.

Reporters included the N&O’s Anne Blythe, Duff Wilson from the Times, the AP’s Aaron Beard, and the local TV stations.

And, in what was the most bizarre event of the case for me personally, on my way out, I found myself crowded in an elevator right next to Victoria (“burn the house down”) Peterson, Mike Nifong’s citizens’ committee co-chair. Peterson (who has never spoken to me before), looked me straight in the eye and asked, “Are you Jackie Brown’s husband?”

I’m usually at least somewhat competent in responding to questions. But I admit that I could come up with no quick-witted reply to this one . . .