Reflections on the Hearing

After five days and more than 40 hours in the courtroom, the star of the Nifong hearings was Disciplinary Hearings Commission chairman Lane Williamson. Alternatively witty, incisive, and blunt, Williamson kept the hearings on track and consistently asked of witnesses questions—off the top of his head—that got to the heart of the case. His asking Mike Nifong whether Nifong accepted the findings of the AG’s report produced perhaps the most dramatic moment of the hearing, as the DA paused for several seconds and then preposterously claimed that “something” happened.

Williamson’s closing remarks—which he delivered extemporaneously—combined eloquence with moral outrage. He opened bluntly, describing the case as a “fiasco” (a critique prominently quoted in every paper’s article of the hearing except the New York Times). What caused the misconduct that marred the case from the start? “It seems,” Williamson noted, “that at the root of it is self-deception arising out of self-interest.” He and his fellow panelists could “draw no other conclusion that that those initial statements that he made were to forward his political ambitions. But having once done that and having seen the facts as he hoped they would be, in his mind the facts remained that way in the face of developing evidence that that was not in fact the case. And even today one must say that in the face of a declaration of innocence by the attorney general of North Carolina, it appears the defendant still believes the facts to be one way and the world now knows that is not the case.”

Williamson made clear that even though Nifong, in his testimony, had described Crystal Mangum as the “victim” no fewer than eight times, “the victims are the three young men to start with, their families, the entire lacrosse team and their coach”—all the way up to the justice system itself. In a line that could have been directed at the Group of 88, he noted that “those who made a rush to judgment based upon an unquestioning faith in what a prosecutor had told them were made to look foolish and many still do look foolish.”

Finally, in a critical finding for any future civil or criminal case, Williamson explained that “the case we have here is a clear case of intentional prosecutorial misconduct. So in addition to this being a deterrent to any prosecutorial misconduct, I would say that this should be a reminder to everyone that it’s the facts that matter.”

The State Bar’s prosecutors, Doug Brocker and Katherine Jean, did a remarkably effective job. They mastered the intricate details of a case that by now is extremely complex. Both asked questions in a straightforward, dispassionate manner—despite the outrages of the case—thereby allowing the “facts” that Williamson deemed so critical to dominate the proceedings.

Brocker’s cross-examination of Mike Nifong was a masterpiece. At the end of his direct testimony disgraced DA had just delivered a tearful resignation, seeming to use his son as a prop designed to increase sympathy. Brocker responded with a precise series of questions to which Nifong unpersuasively responded with increasing evasiveness. In effect, the cross-examination exposed the “factual” Nifong to all, setting the stage for Brocker’s brilliant description of Nifong—Durham County’s “minister of injustice”—in his closing statement.

Nifong’s attorneys, Dudley Witt and David Freedman, had a nearly impossible case to try—their client’s ethical violations had, after all, all occurred in public, and Nifong had given so many different explanations for the DNA concealment that he appeared to be lying.

That said, Witt’s performance stood out as abysmal. His cross-examination of Himan seemed to have as its sole purpose further sliming the players without challenging any of the very damaging items that the officer had related about Nifong’s performance. And his closing argument (a term I use loosely in this context, since the statement had no argument) seemed to perform the almost impossible task of further alienating the DHC panel.

Witt and Freedman also used their witnesses in a peculiar fashion. After spending the first three days of the hearing implying that their client's defense would be that he believed, as of March 27, that a rape occurred, they put Tara Levicy--whose story appeared to change every time Crystal Mangum's did--on the stand only after Nifong had self-destructed in his testimony. Even then, their questioning of Levicy was so amateurish that the feminist zealot wound up helping the prosecution, thanks to Katherine Jean's cross-examination.

Then, for character witnesses in a case that involved allegations of Nifong having withheld evidence and treating Duke lacrosse players according to different procedures than all other residents of Durham, Witt and Freedman put on the stand former DA Anthony Brannon, who reminisced about the good old days when prosecutors routinely withheld exculpatory material, and Judge Elaine Bushfan, who convicted Dave Evans for the very same noise violation of which Dan Flannery previously had been acquitted.

In his final remarks, Williamson singled out two witnesses. He noted that Marsha Goodenow of the Mecklenburg County district attorney’s office had appropriately described the real functions of a prosecutor; he added that the panel had found Goodenow “to be a very persuasive witness.” Williamson also referenced a comment of Wade Smith’s—that Nifong’s statements took the case out of the courtroom and into the public—that several other witnesses and lawyers for both sides also mentioned.

Four Phase One witnesses stood out to me—two for good reasons, two for bad. Brad Bannon’s testimony was a tour de force—intellectually compelling, witty (Linwood Wilson isn’t a law enforcement officer, “but he has a badge”), and often passionate. If the DNA breaker alone had been the only witness in the case, there would have been enough evidence to convict Nifong.

Reade Seligmann’s testimony was so powerful that it appeared to break even Nifong, who announced his resignation when he followed Seligmann to the stand. (Nifong had not told his staff or assistant district attorneys that he planned to resign; they learned only by watching his testimony.) Seligmann’s composure, raw emotion, and critical facts (the discussion of Nifong’s refusal to consider his alibi, the horrific experience of the May 18 hearing) were unanswerable. Nifong’s attorneys didn’t even try to cross-examine him.

On the other side, Brian Meehan brought evasion to new levels, so much so that virtually everyone (including the panel) was mocking him by the end of the hearing. That Brad Bannon explained how DNA is relevant to criminal cases in two minutes more clearly than Meehan did in two hours gives a sense of Meehan’s incompetence. The figure that Lane Williamson labeled “Mr. Obfuscation” also might have opened himself up to a perjury charge, since Meehan said something very different under oath last week than he did in the December 15 hearing.

And, of course, Nifong’s performance as a witness combined the self-pity, evasion, and defiance with which anyone who has followed this case has become intimately familiar.

Among the print media contingent, Aaron Beard from AP, Joe Neff and Anne Blythe from the N&O, and David Graham from the Chronicle provided the first-rate coverage that everyone has come to expect. As for Duff Wilson, he, too, provided the level of coverage that everyone has come to expect from the Times in this case.

Finally, it’s worth considering two cautions expressed by Jim Cooney in the post-hearing press conference. Though the case ended as it should—with the AG’s declaration of actual innocence and Nifong’s disbarment—this was a very close call. First, the defense demanded and then closely examined Meehan’s underlying DNA data not as a matter of course but only because the DNA was the only evidence even remotely implicating Brad Bannon’s client, Dave Evans. Had Mangum picked a lacrosse player other than Evans, the DNA conspiracy might have passed unnoticed. Second, the State Bar’s grievance committee voted to charge Mike Nifong with ethics violations by a mere one vote, with grievance committee chairman Jim Fox casting the tie-breaking vote.

As both Cooney and Joe Cheshire remarked, the hearing is not the last we’ll see of Nifong; a sanctions motion is expected to be filed this week. But the five days did provide much high drama, while thoroughly exposing both the ethical and the legal corruption that guided Mike Nifong’s behavior over the past 15 months.