Smith Cautions Nifong

One of the most important moments in the case occurred out of the public eye. The first judge assigned to the lacrosse matter, Ron Stephens, acted very much like the figure who would, amazingly, give Mike Nifong a de facto endorsement in the New York Times a few days before the election. Stephens signed off on the absurd March 23 NTO; he allowed Nifong to behave unprofessionally in court; and he showed no interest in ruling on the serious motions filed by Kirk Osborn. Stephen’s successor, Kenneth Titus, proved little more than a pawn for the pro-prosecution state NAACP.

It’s not hard to imagine how the case would have proceeded with the biased Stephens or the timid Titus overseeing affairs. It’s highly unlikely that either man would have allowed the detailed questioning of Dr. Brian Meehan that cracked the DNA conspiracy on December 15.

Titus only lasted one hearing; in the late summer, Nifong and the defense jointly agreed to remove the case from North Carolina’s “case management” system and assign it to only one judge. Under North Carolina procedure, both sides submitted lists with four names. The only name on both lists was W. Osmond Smith. His including Smith was one of the biggest mistakes that Nifong made. Smith proved to be a fair judge committed to upholding the law; Nifong, on the other hand, needed a judge who would look the other way as he carried out the highest-profile case of prosecutorial misconduct in modern American history.

In a 10-page memorandum released yesterday, Smith reminded Nifong that he still could have a major role to play in fallout from the case. Ironically, Nifong himself set the stage for the release of Smith’s document. In his rambling December 28 response to the Bar (the letter in which Nifong suggested a conspiracy against him led by none other than Friends of Duke’s Jason Trumpbour), the district attorney strongly implied that Smith had no problem with his entering into an agreement with Dr. Meehan to intentionally withhold exculpatory DNA evidence. Wrote Nifong,

Let us assume that this allegation [by the Bar] is true. Then my false representation to the Court would have been made at the same hearing where the evidence was received, uncontested and under oath, which revealed its falsity. Judge Smith would then have found himself, as the Court having jurisdiction over the matter in question and having direct knowledge of through testimony of my alleged professional misconduct, with (1) the authority under RPC Rule 8.3 to impose discipline on me directly, or, in the alternative (2) the responsibility to report such misconduct to the North Carolina State Bar . . . His failure to take either of these actions would indicate that he believed either (1) that no such misrepresentation [about the DNA evidence] had been made, or (2) that any misrepresentation that might have been made failed to raise a “substantial question of [my] honesty, trustworthiness, or fitness as a lawyer. Either conclusion would disprove the allegation that I had violated the Rules of Professional Conduct.

Translation: Since Smith didn’t act against him on December 15, Nifong was in the clear ethically on the DNA issue.

Smith’s order of yesterday unequivocally rejected Nifong’s assertion. Wrote the judge,

Significant concerns regarding discovery issues arose from the December 15, 2006 hearing. Since the hearing was recessed without completion . . . these concerns were not addressed by the Court at that time, and due to subsequent developments have not yet been addressed by the Court . . . Certain other of those concerns remain as they pertain to actions of counsel.

Further, since the hearing was recessed without completion and without addressing the concerns mentioned above, it would be incorrect to draw any conclusions as to what the Court believed or disbelieved regarding such concerns.

Translation: Since Smith’s “significant concerns” with Nifong’s behavior have “not yet been addressed by the Court,” the Bar should draw no conclusions from Smith’s decision not to sanction the DA immediately. And, as Smith reminded both the Bar and Nifong, he possesses full authority over all “matters related to disciplinary actions involving attorneys before the Court.”

Smith’s memorandum also laid out other areas where he might potentially act:

(1) Expungement. It is inconceivable to me that the three falsely accused players will not petition the court to expunge from their records the grand jury’s indictments of them. It is equally inconceivable to me that the court will not grant their requests.

Moreover, the 43 unindicted players have very strong grounds to petition the court to expunge the March 23 NTO, thereby removing their DNA from the North Carolina database.

(2) Sealed records. The inclusion of this item on Smith’s list came as something of a surprise. The only sealed records in the case are Crystal Mangum’s medical files. Demand for their release has come from a highly surprising source—Wendy Murphy, who wrote in the Boston Globe, “I was told by a reporter that the defense refused to release more than 1,000 pages of evidence.”

Of course, the defense couldn’t release that evidence because it was under seal. Would Smith be willing to consider a motion from Murphy to unseal Mangum’s files?

(3) Matters “related to applicable investigative and administrative orders.” Given Nifong’s repeated violations of such orders, no doubt he was chilled by this item’s inclusion on Smith’s list.

In the end, Smith performed the role the system demands from the judge—as a neutral arbiter committed to ensuring that both sides played fair. In this case, one side didn’t, and Smith’s memo suggests that he will take appropriate action.