The Sanctions Motion

A summary of the sanctions motion, in which the defendants request that Mike Nifong be held in criminal contempt:

The defense contends that in his mishandling of the DNA evidence, Nifong “personally engaged in a pattern of official prosecutorial misconduct which violated at least a dozen laws, rules, and court orders designed to protect due process and the pursuit of truth in the above-captioned criminal investigation and prosecution.” The motion recounts the sordid tale of Nifong’s attempt to hide the exculpatory DNA evidence, which the defense properly reasons “shocks the conscience and defies any notion of accident or negligence.”

The basic storyline:

Mr. Nifong engaged in a pattern of official misconduct that continued to conceal the existence of that exculpatory evidence from the Defendants. The pattern included multiple material misrepresentations to multiple courts on multiple occasions, and it represented a continuing and ongoing violation of the multiple Constitutional, statutory, ethical, and court-ordered duties imposed on Mr. Nifong in this case regarding that evidence.

When the Defendants finally discovered the withheld exculpatory evidence in December of 2006, Mr. Nifong then told multiple different stories about what he knew, when he knew it, and why the evidence was withheld.

Tracing Nifong’s career, the defense recalls that he by and large avoided felony cases after 1999—but not entirely. The Leroy Samuels Trinity Park rape case (2000) was one such matter handled by Nifong. The then-assistant district attorney requested DNA analysis done on the rape kit; when it came back matching someone other than Samuels, Nifong dismissed the charges, writing, “Results of DNA testing exclude defendant as perpetrator of this crime.”

And, the motion observes, Nifong repeatedly claimed he had an open file policy, turning over anything and everything that the state possessed.

Judged solely by his own standards, then, Nifong’s performance in this case was worthy of sanction.

Even in this case, as the motion explains, Nifong was initially not attracted to the “old-fashioned way” of trying rape cases by ignoring all forensic evidence. Using his own words against him, the defense points out that on March 27 and March 28, 2006, Nifong repeatedly, and publicly, stated that he would not act until the DNA results came back. Then, of course, he changed course 180 degrees, downplaying DNA’s importance and speculating about condom use, even though the SANE nurse report that he admitted having read explicitly said that Crystal Mangum denied her “attackers” used condoms.

As Nifong was denying DNA’s importance publicly, on April 5, he secured a court order from the always-pliant Judge Ron Stephens to conduct more DNA testing, through Brian Meehan’s lab. In his testimony last week, the DNA lab director excused his failure to report all test results on the wording of the order, which he claimed was confined to a request for positive matches. The motion gives the lie to this claim, by quoting the order itself: “any male cells found among the victim’s swabs from the rape kit can be evidence of an assault and may lead to the identification of the perpetrator.”

While Nifong heard privately from Meehan on April 10 about the unidentified male DNA, he publicly—at the NCCU forum of the next day—and misleadingly implied that no DNA evidence at all had been recovered. But while downplaying this aspect of Meehan’s tests, the disgraced DA simultaneously suggested, in an April 17, 2006 press release, that DNA would be vital to the indictment of a third suspect (ultimately Dave Evans). Moreover, a May 11, 2006 leak to the Nifong-friendly Herald-Sun suggested that the Meehan tests would be helpful to the state.

Why did the withheld DNA evidence matter so much? The motion explains:

"The presence of DNA characteristics of at least four men across multiple rape kit items that did not match the Defendants tends to negate their guilt in this particular case, under these particular allegations, on a number of different levels. For example:

a. It shows that there was not an “absence of evidence” or “nothing left behind” in this case which precluded DNA comparison for inclusion or exclusion purposes. Rather, there was an abundance of DNA evidence—far beyond the sole reported characteristics of Matthew Murchison on the vaginal swab—that completely excluded the Defendants and Mr. Murchison.

b. It shows that DNA Security testing was so sensitive in this case that it detected male DNA characteristics from at least four people other than Matthew Murchison on the rape kit items which completely excluded the Defendants, in a case where the accuser alleged that at least two of them put their penises in her vagina and rectum, with at least one and possibly both of them ejaculating.

c. It tends to impeach the credibility of the accuser’s claims, in response to questions from both hospital personnel and law enforcement, that the last consensual sexual encounter she had before March 13 was a week before, with Matthew Murchison.

d. In the event that the State might allege that “diffuse edema of the vaginal walls” is evidence of non-consensual sexual contact, the presence of multiple male DNA characteristics on the rape kit items tends to establish extensive consensual sexual activity which would readily explain that finding.

One day after the Herald-Sun article, Nifong accepted an intentionally limited report from Meehan. The motion notes, “By definition, application of that limited reporting formula—which was the product of an intentional agreement with Mr. Nifong—concealed the complete results of “any examinations or tests conducted by” DNA Security, and it specifically concealed the existence of the obviously exculpatory evidence discussed above.

The motion raises Meehan’s “privacy” argument only to rebuff it completely, and then runs through the litany of false statements that Nifong gave to at least two judges and numerous defense lawyers that he had turned over all exculpatory evidence. It also asks Judge Smith to recall that Nifong gave what he himself termed “slightly different” treatment of the request for DNA Security’s underlying data—mocking the defense request, and then raising cost and privacy concerns.

Once the conspiracy unraveled—through the December 13 defense motion and the December 15 hearing—Nifong “told three diametrically opposed stories about his knowledge of the exculpatory DNA test results, which can accurately be paraphrased as follows:

First Story: Ignorance Defense

I did not know about the potentially exculpatory results or that the Defendants had not been provided with the results until December 13, 2006, when I received their Motion, and I immediately took steps to clear it up by having Dr. Meehan here to testify.

Second Story: Knowing/Privacy Defense + No Harm/No Foul

I knew about the potentially exculpatory results all along, and I knew the Defendants did not have those results, because I agreed with Dr. Meehan to produce a report that would exclude those results under a theory that it protected the privacy of the players; regardless, the Defendants have the results now.

Third Story: Knowing/Negligence Defense + No Harm/No Foul

I knew about the potentially exculpatory results all along, but I did not realize that I had failed to disclose them to the Defendants; regardless, the Defendants have the results now.

The fact that those stories are so diametrically opposed demonstrates that Mr. Nifong was simply continuing a pattern of deception about the DNA evidence in this case that he began nearly nine months earlier, on March 29, 2006, when he first began to suggest to the public that the failure to find a DNA link between the lacrosse players and the accuser’s rape kit items was because condoms were used (when he knew the accuser said they were not) or because there was no DNA on those items sufficient for comparison purposes (when he knew DNA Security had found DNA on items that did not match the players). That pattern continued through the spring, summer, and fall, when he engaged in the repeated misrepresentations and violations detailed in this Motion."

The motion also notes, correctly, that “at no point in Mr. Nifong’s questioning of Dr. Meehan or his remarks to the Court on December 15, 2006, did he challenge Dr. Meehan’s repeated sworn representations that he and Mr. Nifong agreed to a limited reporting formula that would, and did, do just that: hide exculpatory evidence. Quite the contrary, Mr. Nifong adopted Dr. Meehan’s explanation and testimony in public comments after the hearing.” That Nifong never—to this day—has attempted to correct the false statements he made to the court only makes him appear more guilty, and, indeed, represents another ethical violation.

Given this behavior, the motion argues, some action must be taken against Nifong: “As the only person who knew about both the exculpatory results and the Defendants’ unquestionable entitlement to those results under multiple laws and rules in May of 2006, Mr. Nifong knowingly took steps, over and over again, that would conceal them—steps that did, in fact, conceal them. He knowingly made misrepresentations of material fact on the subject to multiple judges, including this Honorable Court on September 22, 2006, and December 15, 2006, and he knowingly made misrepresentations of material fact on the subject to undersigned counsel.”

The request:

a. Enter an Order holding Mr. Nifong in criminal contempt of court;

b. Enter an Order directing Mr. Nifong to pay for reasonable costs incurred by the Defendants to pursue and identify the exculpatory results of DNA Security’s testing in this case; and

c. Take any other action against Mr. Nifong, including those afforded by this Court’s criminal contempt powers, which the Court finds appropriate.

Given the Bar’s findings, it’s hard to see how this request could be denied.