Nifong Trial, Day II

The highlights from Day Two of the Nifong ethics trial.

1.) Himan Holds Up

In Tuesday’s testimony, Officer Ben Himan dropped a number of bombshells:

• Pointing to inconsistencies in Mangum’s stories and the lack of a toxicology report, on March 27, Nifong remarked, “You know we’re fucked.” Nevertheless, that afternoon, he launched his preprimary publicity barrage, stating with certainty that a racially motivated gang-rape occurred.
  

• “Sgt. Gottlieb advised me that before we were going to do anything,” Nifong wanted to be advised and that everything had to go through the DA.

• When he heard that Nifong planned to go ahead with indictments, Himan asked, “With what?”
  

• He met individually with Nifong to discuss his concerns with indictments. Nifong blandly responded, “If you believe her story in one part, you’ve got to believe her story in another part.” As a result, Nifong sought an indictment against Reade Seligmann even though he didn’t know if Seligmann even attended the party.
  

• He was “shocked” about not receiving advance notice of the Linwood Wilson interview of Crystal Mangum.

In yesterday’s cross-examination, not only did Nifong attorney Dudley Witt fail to dispute any of these assertions unchallenged, but Himan added another bombshell: that Nifong knew about Crystal Mangum’s medical history, including her psychiatric history, prior to the indictments of Seligmann and Collin Finnerty.

Moreover, SBI agent Jennifer Leyn corroborated another part of Himan’s testimony, making clear in her brief late-afternoon appearance that Nifong was the person in charge of the case. It was, she said, highly unusual for her to be speaking to the DA, and not a police officer, when giving reports during the investigation itself.

The testimony of both Leyn and Himan should provide additional ammunition to those—like Mayor Bill Bell and Councilman Eugene Brown—who are demanding a comprehensive investigation of the police.

2.) Nifong’s SOS

Witt left so much of Himan’s testimony unchallenged because he was busy implementing the apparent Nifong approach—the “Slime & Obfuscate Strategy,” or SOS.

Witt spent the bulk of his two hours repeating: Racial slurs! Broomstick! How such items related to Nifong defending himself against charges of improper public statements or withholding DNA evidence Witt never said. Nor did he mention that no one (except the wholly discredited Mangum and Nifong) ever suggested that the three falsely accused players had anything to do with the above items.

Jim Cooney, appropriately, responded, “What the defense tried to do this morning was absolutely outrageous to these young men . . . But somehow the defense is trying to imply that, because one person on a 46-member team acted inappropriately, that gave Nifong the right to indict Mr. Reade Seligmann with no evidence. It's outragous. Frankly, it's despicable that the fact that he's willing to slime innocent people in the context of his defense.”

When not sliming the players, the Nifong defense was obfuscating. Nifong co-counsel David Freedman spent the better part of 60 minutes in meandering questions of Dr. Brian Meehan that seemed to go nowhere. (Meehan’s equally meandering answers didn’t help any.) The Nifong defense seemed based on Meehan’s claim that he filed an “interim report,” a phrase that first appeared yesterday. And even that claimed was undermined when Freedman asked one question too many, and ascertained from Meehan that, of the 2000 reports he previously had filed a grand total of zero were “interim reports.”

Left unchallenged were fundamental elements of the Bar’s charges: (1) that Nifong lied to Judges Stephens and Smith when he said that he and Dr. Meehan hadn’t discussed anything beyond what was contained in Meehan’s report; (2) that Nifong failed to uphold the law when he did not provide a complete report of all test results to the subjects of a non-testimonial order. Moreover, Nifong’s “interim report” defense would allow defendants who plea bargain to never get the full results of the state’s DNA tests.

3.) The Unpredictable Dr. M

In his previous court appearance—December 15—Dr. Meehan showed himself to be a highly . . . erratic . . . witness. But he outdid himself yesterday:

• He bizarrely rebuked DHC chairman Lane Williamson for what Meehan claimed was an inappropriate question. (In fact, Williamson’s question—which revolved around how Meehan as a juror would use the unreported DNA evidence—got to the heart of the case.)

• He asked David Freedman to repeat a question because, he said, he was moving in his chair and didn’t hear the attorney.

• He stopped the proceedings at one point because, he said, the light coming through from blinds (in a quite dark courtroom) was blinding him.

• He suggested that even lawyers—much less scientists like himself—should have understood that his obscure phrase “non-probative” DNA references really meant that the tests had revealed multiple, unidentified male DNA.

And in a case characterized by absurd statements, he made what might have been the most absurd remark of the case, comparing the unidentified male DNA left on Crystal Mangum’s panties and rectal swab to . . . what might be left behind if kindergarten students touch their teacher.

He did miss his cue once. Asked how Nifong reacted on April 10, when Meehan told him that not only did the rape kit not match any lacrosse player’s DNA, but it also contained matches to unidentified males’ DNA, the doctor paused. Could Nifong have responded to another piece of bad news with a “you know we’re fucked” comment? Meehan eventually said he couldn’t recall how the DA specifically responded.

4.) Lane Williamson continues to impress

The DHC chair asks incisive questions that cut to the heart of the matter, quickly.

From Himan, Williamson ascertained that: (1) Nifong made the decision to go to the grand jury; (2) Nifong knew about Mangum’s extensive psychological history before indictments.

From a reluctant Meehan, Williamson ascertained that: (1) Meehan told Nifong "multiple times" that there was unidentified male DNA, and Nifong never asked him to follow up on the information; (2) Nifong never explicitly said that May 12 report wasn't a final report; (3) in the more than 100 rape case reports that Meehan has prepared, he never had limited his report to just reference specimens.

5.) Bannon on tap

The opening statements and Mike Nifong’s testimony probably will get more attention—but for anyone interested in the case and the legal issues surrounding it, the Brad Bannon testimony will be the highlight of the trial.

The “DNA Breaker” began his testimony yesterday afternoon, and is first up this morning, at 9am.