Nifong Deposition: Personal Issues

Beyond specific issues related to the case, the Nifong deposition contained a number of intriguing personal revelations about the former DA. At various points during his two days of questioning, Nifong revealed himself to be:

• a prosecutor who was at best indifferent to gathering all the evidence or even doing the basic of his job;

• a figure who appears to believe that once a crime is charged, it is basically impossible to prove innocence;

• a candidate who was flexible with his personal and campaign finance matters; and

• a person who held deep grudges that he couldn’t conceal even with his career on the line.

Nifong as Chief Prosecutor

As he would in the ethics trial itself, in the deposition Nifong expressed discomfort with the language of the March 23 NTO, which stated that the DNA tests would exonerate the innocent. Given the DA’s objection to this language, State Bar attorney Doug Brocker asked whether Nifong had ever raised this issue with his chief assistant, David Saacks, who had signed off on the NTO.

Nifong’s response? “Not specifically, primarily for the reason that he would not normally be somebody that would even be dealing with such an order. He doesn’t have a caseload in which this would normally come up. I probably need to have a meeting with my staff generally and talk about some of the issues that have arisen in this case, and this could be one of them. But I have not done that yet.”

Earlier in the deposition, Nifong denied that he ran for a full term for financial reasons; instead, said he, he had a “vision” for the office. Whatever that (never-revealed) vision was, it apparently didn’t involve hands-on management by him.

The Role of a Prosecutor

Under questioning from Brocker, Nifong conceded that he had an obligation to determine whether an allegation was credible, which he could fulfill “by looking at evidence that is inconsistent with that statement and making a determination.” What about, Brocker wondered, considering exculpatory evidence?

Confirming that he should never have been near a prosecutors’ position, Nifong proclaimed that he was “not sure that I would say that it’s my obligation” to look at such evidence if a defense attorney offered it before indictment. Indeed, reminisced Nifong, he never had done so in any case that he prosecuted.

Nifong’s Varying Memory Skills

The quality of Nifong’s memory appears to vary widely depending on the issue at hand. For instance, this exchange:

Brocker: In your response to the grievance in this case, you have talked fairly specifically about what was discussed at the April 21^st and the May 12^th meetings.

Nifong: I believe that—I believe that to be the case.

Brocker: Can you explain to me why you were able to recall those meetings with that specificity in responding to the grievance, but did not recall them during the hearings with the Court?

Nifong: Other than the fact that when I got that December the 13^th motion, it refreshed my recollection, bang, about that. And it was just something that had not—I had not recalled. But yes, I mean once—once I saw that motion on December the 13^th, there was no question that I remembered it.

Yet when asked about his December 21 interview with the New York Times—a much more recent event, after all—Nifong had a memory blackout.

Brocker: After this hearing, you did an interview with—the December 15^th hearing—you did an interview with a New York Times reporter on December 21^st?

Nifong: Yes, sir.

Brocker: Why did you decide to do that interview?

Nifong: I can’t give you a specific reason. I mean I don’t know. I don’t recall my thought process at the time.

Brocker: Generally you had not been granting interviews to reporters after—according to your testimony, generally after April 3^rd?

Nifong: That is correct.

Brocker: Do you remember how long the interview with the New York Times reporter—it’s reported that it was a three-hour interview. Do you recall it being that long?

Nifong: No, sir. It was—I recall it being a relatively long interview, but I don’t recall—I can’t imagine what I would have talked about for three hours to anybody.

Nifong and Actual Innocence

In contrast to his disinterest in reading most case-related documents, Nifong admitted that he “did in fact read all of that [attorney general’s] report.” Previewing his “something happened” moment from the hearing, Nifong was then asked whether the still believed Mangum was sexually assaulted. He paused, said he was “considering how to phrase my answer,” paused again, and then asserted that he agreed “there was not sufficient credible evidence to take the case to trial.”

Brocker pressed: the report, after all, said the three players were actually innocent, not simply that there was insufficient evidence. Did Nifong agree with this conclusion?

The transcript indicated another pause, followed by this statement:

My personal understanding of actual innocence could be that that would be something that would be based on conclusive proof that either an event never happened or that a person other than the person who was accused, therefore who we’re considering the innocence of, had committed that.

An example would be where someone is convicted of a rape and then at some point later testing that was not available at the time of the initial trial reveals that the sexual intercourse was with someone other than the defendant, so the defendant could not be the person. And I think that is actual innocence.

Short of something like that, I am not sure that I could ever feel comfortable in any case saying that anybody is actually innocent. I was not there that night. I do not know what happened that night.

As Brocker noted, “effectively that would mean that the only situations as a district attorney in which you would be willing to say that a person was innocent of an alleged crime was if you had conclusive evidence that somebody else had committed that crime.” Perhaps so, mused Nifong, but in any case it’s not the job of a prosecutor to determine whether someone charged is innocent or not.

His Handling of the Case

In retrospect, Nifong admitted, he might have been better served by interviewing Crystal Mangum at some point in the process. But he couldn’t “say for sure that I would necessarily have come to the same conclusions that the attorney general’s staff came with respect to that because for instance on none of the four occasions when I saw her did I see any evidence whatsoever of any impairment.”

The major issue raised by both Attorney General Cooper and the report, however, was not Mangum’s impaired status. It was the fact that she never had been asked about the myriad discrepancies in her stories, and proved unable to resolve them when she was asked.

Paralleling the Baker/Chalmers report, the ex-DA contended that the behavior of defense attorneys lengthened the case. He singled out—of all groups—the Finnerty team for criticism. After hearing (accurate, as it turned out) “rumors” that Finnerty might have an alibi, Nifong asked one of Finnerty’s attorneys, Bill Cotter, “if he intended to put on an alibi defense.” Cotter’s response? “If I put on an alibi defense, you’ll get the notice of it at the time that the statute says I must give you notice.”

Could the fact that after Reade Seligmann made public his alibi the state arrested one of his alibi witnesses and then adjusted the timeline have encouraged the Finnerty attorneys to remain cautious? Nifong didn’t seem to consider this possibility.

Nifong’s Retirement

Under the North Carolina retirement system, local government employees become eligible for a pension—at any age—after having worked for 30 years in the system. But Nifong only had 28 years.

So, last fall, he bought back the three years for his time as a social worker in the 1970s. (He had lost the money for those years when he used the funds instead to pay for law school.) When, Brocker wondered, did Nifong decide to buy back the three years? “I believe it was sometime last year,” Nifong replied. He had decided he would do so, Nifong claimed, just after Jim Hardin left—but, when pressed, admitted that he hadn’t done so until late 2006.

In other words, as the ethics charges closed in, Nifong realized he might be out of a job and ineligible for an immediate pension. So he hurriedly bought back the years to ensure that he can start collecting tomorrow if Judge Hudson removes him from office today.

The Nifong Campaign

Nifong denied that the primary campaign had any bearing upon his handling of the lacrosse case. Indeed, he claimed, it had hurt him. How? He told Brocker, “I read a poll about two weeks before the election that—before the primary that showed me with, as I recall, a 16-point lead. Now, when that polling had actually been completed I don’t know. Of course the margin by which I actually won [the primary against Freda Black] was about 3 percent. So it is—it was obvious to me that at least in the time between when the poll came out and the time that the election or the primary was held that the Duke lacrosse case had hurt my position.”

Nifong said he couldn’t remember where this poll originated: “I just remember reading the poll in the paper. I was frankly surprised that anybody was polling for that kind of an election. But I do remember reading a poll, a scientifically conducted poll, that said that.” A few minutes later, he reiterated the point: “The only poll that I saw that I believed to be a scientifically conducted poll showed me with a fairly substantial lead a few weeks before the primary, and that lead more or less evaporated.”

Nifong, however, was referring to an N&O poll for the general election—not for the primary. In the primary, a Black poll showed the challenger ahead by 17 points on the very day that Nifong began his preprimary publicity barrage. And the only public poll, taken shortly before the primary, showed Black clinging to a one-point lead. In the end, Nifong won the primary by three points. And at the time, even he admitted that the case had helped his standing among African-Americans—while hurting it among conservative whites, most of whom couldn’t vote in the primary.

Brocker also explored with Nifong the nearly $30,000 in loans he floated to his campaign in the weeks before the primary, as his fundraising dried up. Nifong responded that he had loaned $5000 to his campaign. Brocker then showed the DA the campaign finance report, identifying him as the source of more than $28,000 in loans. Nifong’s reply: “I mean I was aware that my wife had loaned some money to the campaign, but I was not sure—I mean don’t know why it’s in my name, and I did not know the amount. And I don’t recall ever seeing this report before.” If he didn’t read court documents, I suppose, why should he read his campaign finance documents, either?

The surreal exchange continued:

Brocker: Do you see there that this is a repayment, which appears to be dated 6/30/06? And the repayment amount there is $20,357.03?

Nifong: Yes, sir, I see that.

Brocker: Were you aware of that?

Nifong: No, sir, I was not . . . I don’t even know what to say. I mean certainly with respect to the $5,000 that I loaned to the campaign, yes, sir, I can do that. With respect to the other, I’m going to have to talk to my wife and, you know, find out from her. I mean I can certainly tell her the question was raised. And I can’t---

Dudley Witt: (interposing) We’ll see what we can do about it.

Nifong: I mean this is all news to me.

By the time of Nifong’s ethics trial, Nifong’s campaign finance report had been modified—as Liestoppers revealed yesterday. On the stand, meanwhile, the DA argued that his wife, Cy Gurney, had charged more than $23,000 in campaign-related expenses on her credit card (without, apparently, his knowledge!), and that the funds were subsequently repaid to her. This didn’t constitute a loan, however.

How, exactly, a candidate’s wife using her personal funds to pay for the campaign and then getting paid back out of campaign funds later on doesn’t constitute a campaign loan Nifong didn’t explain. His asserted lack of knowledge, of course, allowed Nifong to maintain the fiction that financial motives played no role in his case-related decisions.

Nifong the Person

At a time when he needed to put his best foot forward, Nifong couldn’t resist lapses into the bullying persona everyone saw during the lacrosse case. He repeatedly insulted Jackie Brown during the course of the deposition. He could not conceal his contempt for Joe Cheshire: “My experience with Mr. Cheshire over the years has been that the amount of cordiality that he shows is directly proportional to whether you give him what he asks for.” And he ridiculed Bob Ekstrand, saying that he had assumed personal responsibility for all of Ekstrand’s cases not—as was widely rumored—to punish Ekstrand for the attorney’s outspoken opposition to Nifong’s abuses but because Ekstrand “was held in such low repute by my assistants that I was afraid that his defendants would not get fair treatment from our office.”

So Mike Nifong oriented his policies to ensure that Bob Ekstrand’s clients got fair treatment. How generous of him.