Guilty

Nifong afternoon testimony:

Nifong is a bit more subdued—perhaps because at the lunch break he saw ABC-11’s story that the US Attorney’s office is monitoring the contempt proceedings with the possibility of opening a criminal investigation.

On May 12: “He went over the findings”—particularly the last six pages of the report.

Never told Meehan to hide any information.

“I never really told him what to include, other than I wanted a summary report. I told him what that meant.” Knew of Meehan’s privacy concerns, but didn’t think it would be a problem in the report.

Possible that he spoke to Meehan about the report on the phone, but he doesn’t recall it being the case.

Recalls only a single conversation over the phone with Meehan—but has no memory of who originated the idea of a May 12 report.

Can’t say whether he was told before May 12 what would be in report, but doesn’t recall it.

Nifong: Meehan “told us what was on each page.”—doesn’t remember very much until they got to the page with Dave Evans (page 6)—asked Meehan what the 98 percent exclusion meant. On May 12, for first time, saw tests for Kevin Coleman and Mangum boyfriend Matthew Murchison (“confirming what we believed early on, that he was the most likely source” of the vaginal sperm DNA).

Q: Was there anything else said at that meeting, that you recall?

A: Might have been, but he doesn’t recall anything else. “But it’s not impossible.”

The meeting lasted 20-30 minutes at the most.

Nifong consistently mispronounces Reade Seligmann’s name, over and over again.

Nifong is now mimicking Brian Meehan—providing excruciating details over meaningless issues.

Initial packet—1271 pages—but he didn’t go through these documents and read them. “Some of it was stuff that was not particularly germane to my interests.” ‘I didn’t spend a whole lot of time with that information.”

[It’s nice to see that the lead investigator for the case casually admits to not reading the relevant documents.]

Q: Did you have any reason to go through discovery packet?

A: No—“we were going to turn over whatever they brought.”

“I sent my own investigator out directly to speak with the officers involved.”

“had assumed all along” that there would be a request for the underlying DNA data.

“Dr. Meehan did not have any objection to providing everything they asked for.” Nifong’s suggestion: Meehan was more open-minded than the SBI lab.

Q: When you got SBI and DSI reports, did you believe that you would be asked to turn over underlying data?

A: I knew that would be the case—request of Aug. 31 not a surprise. Made no objection, though did make a ‘smart-ass” statement. Hadn’t been commenting to the press—“but every time we gave a test results, the defense gave a press conference saying that the tests exonerated everybody.” Regrets doing so now—“but the press was in the courtroom.”

[What does any of this have to do with the Sept. 22 court hearing?]

Sept. 22 session—finally gets to the transcript:

“experts are a little different from other witnesses”—expert looking at evidence in a case that he doesn’t initially have a knowledge of

Two categories of information from Meehan:

1) report and anything that’s in it

2) technicalities of Y-STR—“short course in what that expert does”—what expert can say and can’t say—can have “my basic education” about field, but appropriately shouldn’t go into the report—this is not related specifically to the case—related to the subject matter

Might also go over trial strategy with an expert

Q; Did you discuss any of the facts of the case?

A: “The only facts that I recall discussing with him are when he said we think we have a match to one of the fingernails, and I said David Evans,” and then explained why.

[But, of course, Nifong never admitted to discussing this fact on Sept. 22, when he said he had discussed no facts of the case in any meeting with Meehan.]

Hadn’t gone back and read the DSI report before the 9-22 hearing. When he gave his remarks to the court on 9-22, he thought he was being truthful.

Q: When would you read, in detail, the reports?

A: “You read the reports as you need them.”

[Nifong, interestingly, most of the time speaks in the present tense—as if he’s still a prosecutor.]

“It’s not like I’m totally unaware of what’s in some of this stuff. We’ve discussed these things in general terms, but that’s not the same thing as going back and studying in detail what’s in these particular reports.”

“I had no idea” what the 3^rd motion would be—expected motion to suppress, motion to change venue.

“The motion basically said that we had conspired with Dr. Meehan to hide evidence.” [Of course, that isn’t what the motion had said.]

I couldn’t believe that they didn’t already have that, but then I realized that they did have it.” Eventually realized, though, “Thank God they found it.”

Then “pulled out Meehan report from May 12, and started going through it line by line, and I didn’t see any referenced to that, specifically, and didn’t really remember that it had ever come up again.”

“It was like, ‘How could I forget this?’”

“At that point, my feeling was the last thing we needed to be dealing with was public perception that we were concealing evidence.” Faxed him the motion, then called Meehan. Had no conversations with Meehan on what he should or should not say.

Q: Why didn’t you ask Dr. Meehan just to write another report?

A: “The problem that I had with the motion” was attempt to conceal suggested—“I wanted to dispel the taint that would be added to the case that we concealed evidence.”

Never concealed exculpatory evidence, never intentionally lied. “All the statements that I made to the court I believed to be true”—now understands that his statements “were not factually true,” but at the time, believed otherwise.

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x-exam

“With regard to the case-specific facts,” believed he had said everything was in the report. “As it turns out, that was not the case.”

“I don’t recall” Himan testifying that Meehan told them on 4-21 that there were four unidentified male DNA—Himan said so yesterday in court!!

Q: Why didn’t you correct the record?

A: The defense already had this information anyway, no need to correct the record. “I thought that by calling Dr. Meehan it would make it very clear that there was no conspiracy.”

“I’m not sure that I believe I had misrepresented a material fact” on 9-22—just trying to fix the things that were wrong.

“In terms of the materiality of that fact, I’m not sure that I’m in a position to decide that.”

Meehan statement to Cooney “contradicted” other things he said on 12-15, so felt no reason to correct that record. “The testimony that Dr. Meehan made was in some ways self-contradictory.”

“Very sorry that I did that; apologize to the court at this time for anything I might have said that was incorrect.” But never intentionally lied.

Fourth description of Mangum as the “victim.”

“The fact is we did not discuss the facts of the case with Dr. Meehan”—even though, under x-exam, he just admitted that he had done so; Nifong—his statement “basically true” that he didn’t talk about the facts of the case to Meehan.

[This is a truly astonishing line of argument by Nifong—essentially delusional.]

Q: At the 9-22 hearing, why didn’t you just say you hadn’t read the report?

A: Thought he knew what was in the report [without, apparently, having read the report].

“I didn’t have any reason to go back and read the report.”

Defense omnibus motion of Aug. 31 dealt with Meehan meetings—yet Nifong didn’t take this opportunity to review the Meehan report.

“We never thought that the assault took 30 minutes.”

“Had there been ejaculation and had there not been something to prevent the ejaculate from getting on Ms. Mangum,” would not have expected DNA.

“She only knew that something was stuck in her from behind”—no reason to expect DNA.

“I wouldn’t say that the absence of evidence was unusual.”

“It is not at all uncommon for there to be no forensic evidence in rape cases.”

“I’m not even sure that I even thought of the unidentified DNA as a ‘fact of this case.’”

“The impression that I had was that this DNA didn’t have anything to do with this case.”

Defense got the evidence anyway—the case never got out of discovery phase—but clearly caused them no harm.

He and Meehan “talked about a lot of stuff”—but most dealt with the science.

“I did not consider the other DNA to be a case-specific fact.” “It was not something that was on my radar.”

‘What I was hoping for” was to get DNA on fingernail with DSI: [then why didn’t Nifong just send the fingernail, rather than the whole case file, to Meehan?]

“This case never got out of discovery”—the defense eventually just got everything.

Nifong consistently denies that the unidentified male DNA should have been considered exculpatory evidence.

June 22—Stephens order—for all test results; didn’t think he had to go back and check because was no specific timeframe on when the info had to be turned over.

Admits that he didn’t review his file in any way when he went before Judge Smith on Sept. 22

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Closing statements, starting at 4.43:

Glover:

Statements “were not literally accurate, they were not literally true.” But not willfully or intentionally lies.

“How we misperceive things when we look at them in reverse.”—the issue is what was Nifong’s state of mind as of 9-22

“words taken out of context or without context have a meaning . . . that’s something entirely different than what was said.”

1) Meehan’s statement to Cooney;

2) Meehan discussion with Nifong about what should go in report—Meehan and Nifong had very different conceptions of what a report is. [In other words, it’s all Meehan’s fault.]

Have to put exculpatory evidence in context of facts of the case [this, of course, is the precise issue here—since the only physical evidence was “diffuse edema of the vaginal walls,” and Mangum had said she had no sexual contact the week before the party except with Murchison, the other DNA is highly relevant.]

These DNA results meant “nothing” to Nifong—and Nifong was right—these meant nothing in the context of the case.

Meehan material (the DNA from multiple unidentified males in the rape kit) is “evidence you’re going to find on every human being” (!!!!!)

Nifong was under no statutory or court obligation to reduce his comments to Meehan to writing.

Other male DNA was “insignificant”; “had nothing to do with the case”—and no reason he should have noticed this fact.

Glover is now suggesting that the question asked by Smith on 9-22 was unfair—not possible that the report could have recorded everything that was said between Meehan and Nifong.

Nifong wasn’t lying—take his comments in context. “He couldn’t have lied; he had no reason to lie.” “Why would he lie about that [information]? Where does it get him? What could he possibly have in mind?”

Nifong knew that defense was going to get this info—no intentionally made false statements.

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Davis closing:

Nifong admitted that these statements given on 9-22 were false.

2 prongs: 1) Did report encompass everything? Nifong said it did.

2) Were there any statements made by Meehan to Nifong? Nifong said “no other statements made to me.”

Clear that there were conversations between Meehan and Nifong—just look at the conversations recalled by Himan and Meehan with Nifong. Clear that these were “conversations.”

Judge Stephens order of June 22—made clear Nifong was supposed to turn over all tests and results.

But then—Nifong in his Jan. 16 response to Bar, claimed that defense never asked for it. In response to Bar on Dec. 28, Nifong conceded that he knew of this info from Meehan.

Daniel Webster: “An eminent lawyer cannot be a dishonest man.” Warren Burger: lawyers who don’t tell truth or have moral compass, even if they know the law, are “menace to society.”

Have to keep in mind the real victims here—the three falsely accused players. What if their parents hadn’t the money to hire great defense lawyers? What if Bannon hadn’t uncovered the DNA conspiracy?

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[During the closing statements, ADA Jan Paul was enthusiastically nodding as Glover stated that Nifong always turned over all evidence. And Judge Marcia Morey had darted back into the courtroom to lend moral support.

It’s quite remarkable that—after everything—there are still elements of the Durham legal establishment who appear not to believe that Nifong did anything wrong.]

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Judge Smith:

Findings of fact:

1) In capacity as DA, Nifong appeared before Court on 9-22-06, in response to specific inquiries by court, represented that Meehan report included all statements made by Meehan to Nifong regarding all DNA tests.

2) Such representations by Nifong were false at the time they were made given existence of multiple unidentified male DNA.

At time of Nifong statements 9-22, he was aware of Meehan statements. He was aware that Meehan report didn’t contain these statements. And he was aware he hadn’t provided such information to defendants.

4.) These items material, exculpatory, and impeachment evidence, to which defendants were entitled.

In making such statements, Nifong willfully and intentionally made false statements of material fact to the Court. Nifong thereby failed to disclose exculpatory and impeachment evidence.

This behavior is in violation of NC criminal contempt statutes. Nifong’s act “is willfully contemptuous.”

Nifong is guilty, announced 5.32.

Nifong character witness: Judge Ron Stephens.

Born and raised in Durham County—has known Nifong for almost 30 years. “He was always straightforward.” Talking about Nifong in the “pre-lacrosse setting.” A “victim-friendly” prosecutor, concerned with “victims’ rights.” Developed and became a better trial lawyer over the course of his career.

“middle of the road style”—always right down the middle. “Always felt like his word was his bond.” Believes that this was the same view among most people in the Bar.

Nifong “not a real cuddly kind of guy.” ‘I relied on him to enforce my rules” when Stephens was DA. “He was the enforcer; he enforced my rules.”

“If he told a lawyer something, I never had a complaint.”—might have been a complaint about the way in which it was told.

Nifong “never had a problem with the discovery process.” Nifong “a good lawyer, a real good lawyer.”

Lots of people didn’t want to try against Nifong because he would win close cases. But did it the right way.

Nifong was a good mentor—“a lot of positive things that he did in the office to assist in the criminal justice system”—Nifong smart, a “legal resource”—helped new prosecutors “how to do things right.” “Almost a joke in the office” to “run this past Nifong.” Other people relied on Nifong to assist them and tell them right way to behave.

‘It has always been a thumbs-up to Mike Nifong, as far as I’m concerned.”

Nifong had to be “encouraged” to take DA job—“at that point in time, it was all a thumbs-up for Mike Nifong.” Nothing in Nifong background to suggest he wouldn’t do a great job.

Nifong the “appropriate choice at that time to do that job.” Stephens near tears by the end of his remarks.

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Davis:

Previously served on Judicial Standards Commission and Disciplinary Hearing Commission. Not enjoyable positions—but something that had to be done.

Felt like he had a duty to serve as special prosecutor even though would have preferred not to do so.

Two reasons for punishment:

1) Punish the person who’s been convicted of the crime.

2) Just as important is “to act as a deterrent to someone else who might be thinking of doing the same kind of thing.”

Nifong does need to be punished. “When you start saying things to the court that aren’t true, you are taking a jackhammer and trying to tear at the very foundation, the rock on which our court system is built.”

If you can’t rely on officers of court, and DA’s and ADA’s aren’t honest and truthful, then “our court system is gone.”

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Smith:

Concerns arose in his mind on 12-15-2006; has kept an open mind from then until today.

In findings, no evidence of conspiracy between Nifong and Meehan; until this trial, not sure what Nifong’s response was going to be.

Nifong could have been heard on 12-15 as to his explanation, but didn’t ask to be heard.

Still concerned as pertaining to actions of counsel—but felt it would be inappropriate for him to initiate actions while State Bar and proceedings of lacrosse case were still ongoing.

What this proceeding is not about:

--prosecution of falsely accused;

--not about possible sanctions;

--not about statements to media or press conferences;

--not about politics or public office, or State Bar

“And it’s not just about Michael B. Nifong.”

“matters essential to the Court’s existence and orderly administration of justice.”

This “about protecting and preserving the integrity of the court”—about candor, accuracy, and truthfulness in representations to court, especially in important matters where people’s lives are at stake.

Court must be able to rely on representations to court by attorneys.

“strong sense of setting a deterrent”

Stephens testimony “strong mitigation” as to the offense committed

Nifong sentenced to one day in jail.