Friday, April 13, 2007

Update So Far


Appreciates the opportunity to speak before the DHC

“My motion does not address or deal with the pretrial statements that were made by Mr. Nifong”

--or false comments to the Court

--or any matters relating to the Bar

--or any “alleged agreement” between Nifong and Meehan

“I’m not sure I really under stand the State Bar’s position” re the therefore allegations

Constitutional claim of Bar: state bar needs clear, cogent, and convincing evidence

Williamson: Is a Brady violation necessary for a violation of Rule 320.18

Witt: No appropriate guidelines, need to look at law of US Sup Ct re “reasonable time for discovery within a criminal process”

The Bar hasn’t outlined anything specific regarding timing before this case

“discovery is an ongoing process”—report of an expert, need to have time to digest it and study it; need a trial to see how it will be used

Need a “roadmap for a prosecutor to make certain that they are complying with the RPC”

Williamson looks openly skeptical during Witt’s presentation

“Do they have to show a violation of the Constitution to show a violation of Rule 3.8(d)”

Witt: “I think that would be a prudent rule to have”—have to show violation of either Const. or statutory violation

Nifong’s hands tight and clasped throughout Witt’s presentation

“We incorporated the argument of the AG’s office” to justify their brief—State v. Shannon

“we are now combining two different rules”—expert rule with witness rules—expert rule deals with trial issues

Williamson: “we’re not dealing with expert discovery; we’re dealing with it as an adjunct as to the duty to disclose exculpatory evidence” 3.8B “is pretty straightforward”—make timely disclosure; “thou shalt do”

“we’re hear to enforce the RPC, not to discovery rules or the Constitution”—Brady is not co-existent with 3.8(d); 3.8(d) is broader than the Brady rule—“how do you get around that?”

Witt: “get around that” with “timely” issue

Nifong was “timely complying with discovery”; need to have firm rules on what “timely” is

“You need for due process for prosecutors, I think you need to provide some guidance to let people know what their obligations are”

State Bar’s position is that it has “unfettered ability” to decide what is timely

Williamson—needs to be some guidance as to what timely disclosure would be, not much precedence here; 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. I think that gives pretty good guidance”

Witt: “were not any critical proceedings in the criminal case”—

Williamson: How many hearings were there between Meehan and ultimate revelation? “Why can’t any one of those be considered a critical stage of the case”?

Nifong “all compliance with the orders”; Nifong turned over underlying data

Williamson: “wouldn’t it be anomalous to say that because there wasn’t a trial, there can’t be a violation of Rule 3.8(d); Brady violation and Rule 3.8(d) are different in several respects—3.8(d) can deal with immaterial exculpatory evidence

“This notion that you have to have a constitutional violation to have an ethical violation” is not so

“Nifong would not have known what the standard was when conducting the discovery”

Williamson: “I don’t think so!” there is guidance—3.8(d), ABA standards; blasts Witt for focusing on discovery statutes; prosecutors are deemed to be aware of CRP; 3.8(d) is very broad

“almost a medieval scholastic argument to argue is there a constitutional violation if there’s no trial?”—argument “doesn’t matter in this case”—we’re dealing with 3.8(d); not appropriate to deal with on a motion to dismiss; Witt “going outside what we can consider”—need to deny

Williamson: “you seem to put a lot of stock in the notion” of timeliness;

“an uncharitable person would say that if you 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”

“intent is important here”—need to figure out what Nifong’s intent was

“an uncharitable person would say that’s the way you’d do it if you were trying to hide it”; how can that argument prevail at this stage—dealing with motion to dismiss

Nifong frowning, gaunt

Witt: bar’s position puts duty on prosecutor to understand the science; defense has experts, they can figure things out—“this is part of the adversarial process”—need to have an opportunity to have your experts review, “this gets into trial strategy”

Williamson: ‘we’re not talking about the nuances of the science here”—talking about DNA testing, everyone puts a lot of credence in this; as a layperson, very easy to understand if an expert tells me that no DN of lax players but DNA of other men; “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”; isn’t it so that’s got to be reported in any credible report;

Rape shield statutes;

Williamson –Everett’s explication is “preposterous”

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

Witt: Yes, that’s correct.

Williamson: Nifong looking for evidence to link players, rather than what’s exculpatory; but even if he was focused on that, doesn’t that—“as a layperson, it just hits you in the face that somebody else’s DNA has been found”

Nifong has started his tic of blinking rapidly

Williamson: agrees that this is a case of first impression in NC, and not many cases, period, that deal with issue of this type

Williamson: “Based on what is admitted, and is not in controversy, the issues are really simple”—very few of the statements are in dispute; many of the facts related to the DNA evidence are not in dispute; “the issues are pretty simple: did he talk too much? Is there a legitimate law enforcement purpose for those statement?” DNA timely? And “what was his intent?” Intent “is going to be an issue”—need to hear from Meehan, Police Department on this issue

Four days set aside for this hearing

In the Matter of Attorney C 47 P 3rd 1167 Colorado (2002)

‘as events that cause counsel to consider strategy and review their files”

Amendment to 3.8(d), the analysis for purposes of this case remains same as old and new rule: jean: analysis is the same

Jean: wants to hit the crucial point, but willing to answer any questions of interest to the committee

Nifong motion “a very narrow issue”

The issue is whether there’s a violation of 3.8(d): Williamson point “very telling in this case”

Nifong obtained an NTO, learned this information from Meehan—but then sought and obtained indictments—“seeking and obtaining indictments is a critical stage”

Meehan gave oral report to Nifong on 4-10—but he didn’t give that report—ever—to the NTO subjects; don’t need an outside standard—this is a simple issue NTO statute says REPORT, not “written report”

Return to issue of ‘critical stage”—after that first meeting, were two more meetings, again, Nifong given oral reports from Meehan—then went and indicted Dave Evans

Nifong therefore has gone through two critical stages and has not complied with the statute

At this stage, state bar’s allegations must be accepted as true

“bothersome: in 95 percent of the cases in NC, plea bargain, not a trial; Nifong is contending that any of these people can never have an ethics violation

“what the defendant seems to be arguing is that for the defendants who don’t have the means to fight—no harm, no foul. It’s a scary concept”

Corrects Nifong on June 22 issue; June 22 order doesn’t deal with timeliness—it deals with immediate turning over

This from NC law—subsection a(1)—term file includes witness statements and results and

Says “oral statements shall be in written form:--nothing in this law that says has to be done before reasonable time, has to be done

Lawyers put law in front of Nifong, he refuses to look at it

Jean: law is clear—all results, not some results, have to be turned over

Nifong: “I think I’ll cherrypick the results and give those to the defense”; that doesn’t comply with NC statutes, and court entered an order saying do it now

‘I find it particularly hard to grasp that one of the arguments that defendant has made in his motion” focused on 9-22 court order, and no requirement to turn over written memoraliazations—but the reason was Nifong, on three separate occasions, “Nifong made false representations to court”

“reject the idea that if you don’t go to trial, you can never have constitutional violation . . . and reject the idea that a prosecutor can withhold exculpatory evidence” at such time when he deems it relevant and in the best interests of the state