Today Does Nifong

David Freedman, the attorney representing Mike Nifong in his upcoming ethics proceedings, appeared this morning on the Today show.

Perhaps the most outrageous statement of the piece came from Today host Matt Lauer. Here’s how Lauer described Nifong’s decision to enter into an agreement with lab director Brian Meehan to intentionally withhold exculpatory DNA evidence, followed by unequivocal statements by Nifong to first Judge Stephens and then Judge Smith that no additional exculpatory evidence existed.

“Nifong did not inform the accused right away” about the DNA results, said Lauer. There’s a good example of hard-hitting journalism.

Having dismissed the significance of the DNA issue, Lauer asked no questions about it. The interview thus covered three items: (1) Nifong’s statements; (2) Nifong’s pandering; (3) Nifong’s current approach to the case.

On the statements, Freedman argued that Nifong didn’t do anything wrong ethically, but if he had the situation to do over again, he would not make the statements. (Of course, if he hadn’t made the statements, he almost certainly would not have won the primary.)

We’re still contesting whether statements he made were unethical or not . . . [since the] statements he made didn’t go particularly to any of the defendants themselves. The statements he made were that he believed a crime occurred, and he was trying to solve that crime. He didn’t say that any of the three that were charged actually committed that crime, and most of the statements he made were made before any of the charges were coming forth.

Lauer did not ask Freedman how this argument would cover statements that Nifong knew or should have known to be false—particularly his musings that the “attackers” could have worn condoms as a way of explaining away why the DNA tests Nifong’s office had promised would exonerate the innocent came back negative.

Lauer also did not ask Freedman about why people publicly identified as suspects by Nifong’s own office (the 46 white lacrosse players, including the three people ultimately charged) were not entitled to the protection of the Bar’s ethics code, which prohibits a prosecutor from making statements that heighten “public condemnation of the accused.” Let’s face it: given so much of Nifong’s misconduct has appeared in the public eye, Freedman doesn’t have much to work with on this issue.

On the issue of pandering to the African-American community, Freedman responded, “We steadfastly deny that. At no time did he do those things to pander to the community.” He added that Nifong had served in the prosecutor’s office for nearly three decades and was appointed to the DA’s position (apparently, according to Gov. Easley, with a promise not to run for election).

It’s not clear to me how Nifong’s previous record or the fact that he was appointed explains why Nifong did or did not pander to the community. (Indeed, the latter point provides one reason why Nifong needed to pander--because of his status as an appointee, he had fairly low name recognition before the case broke.) But take Freedman at his word. Lauer might have asked any of the following questions: what legitimate law-enforcement purpose was served by Nifong stating:

• [Dismissing the case] does nothing to address the underlying divisions that have been revealed. My personal feeling is the first step to addressing those divisions is addressing this case. That is not the kind of thing that you can really assign to somebody else and say, ‘You go do this for me. The future of Durham’s in the balance and I don’t really want to get my hands dirty.’” [emphasis added]

• I’m not going to allow Durham’s view in the minds of the world to be a bunch of lacrosse players at Duke raping a black girl from Durham.

• There’s been a feeling in the past that Duke students are treated differently by the court system. There was a feeling that Duke students’ daddies could buy them expensive lawyers and that they knew the right people.

• [His opponents] have endeavored to make this election something it is not: a referendum on a single case that that view as a threat to their sense of entitlement and that they do not trust a jury of Durham citizens to decide: a referendum on a single case that that [sic] view as a threat to their sense of entitlement and that they do not trust a jury of Durham citizens to decide.

Or, Lauer could have asked Freedman—if Nifong did not intend to pander

• why the district attorney publicly stated he didn’t know that Kim Roberts made the first 911 call (thereby creating the impression that the lacrosse players had harassed innocent black passersby) when, in her statement to police seven days earlier, Roberts had admitted that she did make the call.

• why the district attorney went to predominantly black NCCU to affirm that “this case is not going away,” rather than simply issuing a press statement.

• why the district attorney compared the case to a cross-burning—an obvious racial reference.

Freedman concluded by noting that Nifong “has no interest at this point” in the disposition of the case: “He has no personal interest.” Apparently, the DA’s regard for the person he once lionized as “my victim” has diminished.