Nifong, Unfiltered

Mike Nifong’s August 7 letter surrendering his law license combined the pettiness, arrogance, and self-pity that characterized his performance throughout the lacrosse case. The ex-DA considers himself the victim of “fundamental unfairness” in the disciplinary process. He charged DHC chairman Lane Williamson—the beacon of integrity in this affair—with conduct that was “preposterous beyond belief,” for the grievous offense of correcting a clerical error. (The written order disbarring Nifong had unintentionally neglected to contain one of the eleven counts on which the DHC found the ex-DA guilty.)

As Joe Neff pointed out, Nifong’s response contradicted the statement of his former attorney, David Freedman, who told the disciplinary panel, “I’ve talked with Mr. Nifong. He has told me that he believes this has been a fair and full hearing of the facts, that he believes disbarment is the appropriate punishment in this case.”

Nifong’s petulant letter reinforced a pattern of “two Nifongs” in dealing with the DHC. The first Nifong appeared in responses or statements made or vetted by his attorneys, which were generally unpersuasive but at least were professional. The second—and unfiltered—Nifong emerged when the ex-DA communicated with the Bar before clearing his work with counsel.

Besides his recent letter, two other documents fell into this category. The first was Nifong’s little-noticed reply to the Grievance Committee’s notice informing him that the Bar was considering filing ethics charges over his improper public statements. Nifong didn’t hire a lawyer until early January: this reply, dated August 29, 2006, was his work and his work alone.

By the time the June 2007 ethics hearing came around, even Nifong’s attorneys—Freedman and Dudley Witt—admitted that the ex-DA had violated the provisions of Rules 3.6 and 3.8 (which relate to improper public statements, the latter rule applying to the prosecutor alone). Their basic defense: Nifong was a political naïf, overwhelmed by the media, and he regretted what he had done.

In his August 29 response, however, the unfiltered Nifong assumed a far different position. On no fewer than 26 occasions, Nifong asserted, “None of the statements contained in this allegation are impermissible under the RPC [Rules of Professional Conduct].”

Some of the ex-DA’s specific claims were—to borrow a phrase—“preposterous beyond belief.”

For instance, in his August 29 reply, Nifong tried to explain away his repeated comments to CBS, CNN, and MSNBC expressing certainty that a sexual assault had occurred.

“The statement that ‘a rape did occur,’” Nifong informed the grievance committee, “is no different in substance than a statement that a victim whose body has been found with a bullet wound to the back of his head was the victim of a homicide.” Well, of course, when there’s a murder, no one can possibly say that no crime occurred. That, obviously, wasn’t the case in this matter. Nifong was unconcerned. As he demonstrated the chokehold on national TV, the unfiltered Nifong told the Bar that he was only attempting “to reassure the citizens of Durham that they had no reason for concern.”

Nifong also creatively reinterpreted his appearance at the April 11 forum. While on the NCCU campus, the ex-DA asserted that he would try the case “the old-fashioned way”—without DNA—and falsely implied that there was no DNA “left behind” on Crystal Mangum.

Nifong claimed that he only appeared “at the request of NCCU Chancellor James Ammons, and in the face of rising racial tension following the defense press conference on April 10,” in which the defense attorneys stated (truthfully) that the DNA tests from the SBI had revealed no matches to any lacrosse player. Why, according to Nifong, did he address the forum? “To correct any misunderstanding that might have been engendered in the community by the prejudicially false or misleading statements made by the defense attorneys(!), thereby defusing any potential for community unrest that might have resulted from those statements.” What were those “prejudicially false or misleading statements” by defense attorneys? Why could he not have accomplished this goal through the police issuing a statement rather than through him appearing at a televised forum three weeks before the primary? Nifong never said.

The next day, Nifong made one of his most inflammatory remarks, stating, “I’m not going to let Durham’s view in the minds of the world to be a bunch of lacrosse players from Duke raping a black girl in Durham.”

His rationalization on why this comment didn’t “heighten public condemnation of the accused”? “The quoted comments,” wrote the ex-DA, “were made in the context of a public (and nationally televised) forum in which all three candidates for the Democratic Party nomination for Durham District Attorney participated. The specific question that elicited this response asked for comment on allegations that I had taken the case in question for political gain—in essence, an accusation that I had acted unethically. I believe that my response was specifically allowed under Rule 3.6 (e),” which waives the prohibition against improper pre-trial publicity so an attorney can reply “to charges of misconduct publicly made against the lawyer.” (Note that the rule doesn’t waive the prohibition when he thinks that “in essence” someone might have accused him of misconduct.) Nifong never said, in any case, why it was necessary to make a racially inflammatory statement—at a campaign event, no less, that was “nationally televised”—to defend his professional integrity.

On other occasions in his August 29 reply, Nifong blamed the media for failing to provide sufficient “context” when using his quotes. (If this sounds familiar, it’s also the Group of 88’s latest line of defense.) Or, he said, he could issue inflammatory remarks to counter “the substantial undue prejudicial effect of recent publicity not initiated by the lawyer or the lawyer’s client”—even though this provision of the code was supposed to apply to defense attorneys, not prosecutors. And, finally, Nifong suggested that he could say whatever he wanted until he obtained indictments.

Nifong’s lawyers abandoned all of these intellectually dubious arguments by the time of the DHC hearing.

The ex-DA concluded his August 29 missive by wallowing in self-pity. “It was,” he wrote, “a moment of great anguish for me to receive notice on August 22 that grievances had been filed against me for the first time in my career.” If he was in trouble, it was only because he “spent too much time trying to treat the various media organizations fairly.”

Nifong was similarly unfiltered in his December 28, 2006 response to the notice of possible ethics violations regarding the DNA evidence.

The letter conveniently forgot his April 10, 2006 meeting with Dr. Brian Meehan—a meeting he had, in court, previously acknowledged attending. Meehan’s findings of multiple unidentified male DNA, he suggested, didn’t have to be turned over anyway, since they were “non-inculpatory.” Or he might have forgotten to turn over the test results, because he “was facing an unusually contentious challenge from an unprecedented number of challengers [two!].” Or his staff, which was not “familiar enough with the facts of the case to have known whether anything was missing,” might have accidentally neglected to include the results.

As in his most recent missive to the Bar, Nifong played the self-pity card, in one of his strangest assertions of the entire case:

A well-connected and well-financed (but not, I would suggest, well-intentioned) group of individuals—most of whom are neither in nor from North Carolina—have taken it upon themselves to ensure that this case never reaches trial. (And if this seems like paranoid delusion to you, perhaps you should check out websites such as former Duke Law School graduate and current Maryland attorney Jason Trumpbour’s www.friendsofdukeuniversity.blogspot.com/, which has not only called for me to be investigated, removed from this case, and disbarred, but has also provided instructions on how to request such actions and to whom those requests should be sent.)

The most consistent element of the unfiltered Nifong, however, is a tendency to lash out at the Bar. In his December missive, he charged that he was being held to an unfair standard: “For some time now, the ‘word on the street’ in prosecutorial circles has been that the North Carolina State Bar, stung by the criticism resulting from past decisions involving former prosecutors with names like Hoke and Graves and Honeycutt and Brewer, is looking for a prosecutor of which to make an example.”

Nifong’s most recent petulant response only confirms the DHC’s wisdom in taking his law license. This is a man who, in his unfiltered form, still appears to believe that he handled the lacrosse case in a procedurally proper manner.