The Bar's Devastating Response to Nifong

The N&O has posted the Bar’s response to Mike Nifong’s memorandum of law to dismiss some of the ethics complaint against him. It astutely describes the Nifong memorandum as asking the Bar “to undertake statutory construction, interpretation of case law, and semantic hair-splitting.”

A basic summary.

1.) Nifong’s defense appears geared more toward possible criminal allegations than to answering the Bar’s complaint that he violated the Rules of Professional Conduct.

In its response, the Bar notes that Rule 3.8 requires a prosecutor to disclose all evidence in a timely fashion, and that “a prosecutor’s compliance or non-compliance with statute, constitutional provision, or court order is not determinative of whether disclosure under former Rule 3.8 was ‘timely.’” In other words, Nifong’s memorandum is attempting to prove that the DA didn’t violate the Constitution when he entered into an agreement with Dr. Meehan to withhold exculpatory evidence. Yet he doesn’t even try to address the question of whether his behavior violated the Bar’s rules.

Indeed, the Bar contends that Nifong’s conduct regarding the DNA evidence (along with the arguments presented in his defense) violate the “plain language” of North Carolina law. Under the statute, the Bar’s response observes, “the issue is not whether a defendant is able to surmise—from a massive amount of raw data—whether the expert uncovered potentially exculpatory evidence, but whether a ‘report of the results’ was furnished to the defendant by the State.”

2.) A report is a report.

The Bar’s response dismissed Nifong’s absurd argument that in handing over—months after the fact and under court order—the underlying data from Dr. Meehan’s DNA tests, he was complying with a statutory requirement to hand over a report on all tests performed by expert witnesses of the state.

3.) Nifong’s no-trial rule makes no sense.

The response also dismisses Nifong’s “proposed bright-line rule” that because no trial date had been set, he didn’t have to turn over the exculpatory evidence. As the Bar notes, “This argument conflates the issue of whether a constitutional violation occurred with the issue of whether such a violation is grounds for reversal of a conviction.” Nothing in the Rules of Professional Conduct suggest that the rules kick in only once a judge sets a trial date.

4.) Nifong fails his own constitutional test.

In a devastating passage, the Bar notes that Nifong misread a Supreme Court decision—United States v. Argurs—that figured prominently in his memorandum. In Argurs, the Bar noted, “the U.S. Supreme Court carefully distinguished between situations in which the defendant makes either a generic request for exculpatory matter or no request at all, and instances “in which specific information has been requested by the defense,” and that “when the prosecutor receives a specific and relevant request, the failure to make any response is seldom, if ever, excusable.” In this case, of course, the defendants repeatedly requested the DNA material, Nifong repeatedly denied that any more test results existed. Nifong, therefore, violated with Argurs test—the very test his own memorandum had proposed—and with it, violated the Constitution.

5.) Lying to the court ought not be rewarded.

The Bar takes strong issue with Nifong’s argument that because both Judge Stephens and Judge Smith didn’t order him to memorialize his conversations with Dr. Meehan, neither he nor any other law enforcement official had to do so. “It is worth noting,” the response correctly recalls, “that the content of each Order was based on Nifong’s misrepresentations to the Court as alleged in the Amended Complaint. Therefore, Nifong is effectively arguing that he can make false statements to a court which result in the entry of an order, and then use the order that is based on his misrepresentations to claim he committed no discovery violation.” Such an approach would undermine the system of justice.

Nifong, in short, is arguing that his “successful deception of the Court” immunized him from any future ethics charges for his having lied to the Court in the first place.

6.) Nifong is still violating the law.

As the Bar’s response points out, North Carolina law “is unambiguous: Anyone subject to an NTO must be given any report of test results as soon as such a report is available.” Yet as of today, Nifong has never provided the relevant information to the 43 unindicted players, and he certainly didn’t provide it to the three indicted players as soon as the information was available.

In devastating fashion, the Bar concludes that Nifong wants the Disciplinary Hearings Commission to conclude “that it violates none of the Rules of Professional Conduct for him to:

(1) discuss and be keenly aware of potentially exculpatory DNA test results and direct or agree that those results would not be contained in a report provided to indicted defendants and other named suspects, and

(2) successfully and repeatedly deceive courts into entering orders finding falsely that he had had no previous discussions about these potentially exculpatory DNA test results, because . . .

. . . over five months later and pursuant to a court order to compel, he ultimately provided the defendants almost 2,000 pages of underlying data without any report. In essence Defendant argues that, court orders and very specific discovery requests notwithstanding, he had absolute discretion to withhold potentially exculpatory information of which he was fully aware until some unspecified time prior to trial without violating the Rules of Professional Conduct. Defendant’s contention that he was under no obligation to provide the information because no trial date was set necessarily implies that he was also entitled to withhold and never disclose potentially exculpatory information in any case that settled prior to trial. These precepts, if accepted, would apply not only to Defendant but to all other prosecutors and must be rejected.

Unanswerable.

Nifong's Flailing Response

Overshadowed by yesterday’s performance of “The Uncooperative Miss M”—in which the same accuser who had no problem hurling charges to a newspaper reporter shielded by the veil of anonymity now is, apparently, refusing to deal with prosecutors who might ask her hard questions—Mike Nifong’s attorneys filed a new brief yesterday urging the dismissal of some of the ethics charges against him. If this is the best case his attorneys can offer, the D.A.’s chances of keeping his license would seem very slim.

When last heard from, attorneys for the disgraced D.A. challenged the bar’s ethics complaint by alleging:

• While Nifong did make all but one of the comments attributed to him by the Bar, these comments didn’t violate the ethics rule against heightening “public condemnation of the accused” –either because the 46 white lacrosse players identified as suspects by his own office, the DPD, and even Durham CrimeStoppers weren’t really suspects; or because the police fed him inaccurate information; or because he was entitled to offer assertions about their guilt to counter unspecified defense misstatements of fact;

• A district attorney isn’t compelled to turn over a “complete report,” at any stage of the process, and can instead produce a report listing only those tests results favorable to the state; and if the defense can’t understand the underlying data the state unwillingly provides, that’s too bad.

• Nifong has no memory of the April 10 meeting between himself, Meehan, Gottlieb, and Himan, even though that meeting was referenced by: police notes; Meehan’s December 15 testimony; Nifong’s own January 16 letter to the Bar; and Nifong’s own comments at the June 22 hearing.

• Despite the bar’s requirement that he function as a “minister of justice,” Nifong failed to examine all of the evidence presented by Meehan, and was instead searching only for evidence that could convict a Duke lacrosse player.

Nifong’s new response consists of four sections, and could serve as an example of how lawyers attempt to handle a case where the facts aren’t on their side.

1.) Nifong’s actions didn’t violate the Brady rule.

The longest section of the response—more than four pages—explains why Nifong’s actions didn’t violate the U.S. Constitution, and specifically the Supreme Court’s Brady decision, which requires prosecutors to hand over all potentially exculpatory evidence.

While an intriguing theoretical argument, the tactical wisdom of this approach seems hard to determine: in a 291-paragraph ethics complaint, the Bar mentioned the Brady issue in a grand total of two paragraphs, in which the alleged Brady violation was listed as merely one among many Nifong ethics violations. So, even if the argument presented by Nifong’s attorneys were correct, it would do virtually nothing to weaken the Bar’s case.

2.) Nifong’s actions didn’t violate the Open Discovery statute, because the defense received the relevant information before a trial occurred; and, in any case, Nifong turned over everything he had.

Nifong first floated this line of argument in his December 28 letter to the Bar. In yesterday’s filing, his attorneys reasoned,

In short, the allegations contained in the Amended Complaint reveal that after receiving an initial report from Dr. Meehan [on May 12], Nifong provided that report to the Duke defendants, and after receiving the underlying data from Dr. Meehan, Nifong provided that data to them as well [on October 27, one week later than the court had told him to do so].

Nifong’s lawyers neglected to mention one aspect of the story: that Nifong met with Meehan (at the now-forgotten April 10 meeting and, by his own acknowledgment) twice thereafter; and that, according to Meehan’s own testimony, Nifong and Meehan entered into an agreement to produce a report that intentionally withheld exculpatory evidence.

The Nifong line of argument therefore appears to be: prosecutors should conspire to produce one-sided expert reports, promptly turn these incomplete reports over to the defense, and hope that the defendants agree to a plea bargain. If the defendants insist on a trial, then and only then should the prosecutor turn over the whole report.

This—it’s worth remembering—is the prosecutor whose conduct has been championed by the state NAACP.

3.) Neither Nifong nor any other law enforcement official was required to produce notes of their discussions with Dr. Meehan; therefore, their failure to do so wasn’t an ethics violation.

Nifong’s attorneys concede that North Carolina law requires prosecutors to turn over all “statements” to the defense. But, harking back to Bill Clinton’s defense—“It depends on what the meaning of the word ‘is’ is”—they posit that Nifong should be exonerated of the charge because the statute “failed to specifically define what the term ‘statement’ encompassed.”

This reasoning would effectively gut the Open Discovery law, since prosecutors could simply withhold statements at will by claiming that they weren’t really “statements.”

Perhaps recognizing that the Bar is unlikely to endorse this claim, the Nifong lawyers offer a second argument: Nifong’s discussions with Meehan were attorney “work product,” and therefore not discoverable. This line of defense likewise stands little chance of success: if allowed, it would suggest that prosecutors could routinely enter into agreements with expert witnesses to withhold exculpatory evidence, but then refuse to report the results of such discussions on the grounds that creating the conspiracy was part of the normal job of a prosecutor.

4.) Nifong didn’t violate the North Carolina law requiring that the subjects of a Non-Testimonial order be supplied with a copy of reports of the test results from the NTO because . . . well, because Nifong says so.

In contrast to the four-plus pages the Nifong response devotes to the Brady question, the response addresses this issue—where, it would seem, the Bar has Nifong dead to rights—in two cursory paragraphs.

Nifong again invokes the Clintonian defense: “The statute does not set out any specific format in which the ‘report’ must be; only that the information must be provided to the subject.”

A reader e-mailed me yesterday to report that in this week’s online column, NCSpin.com reports that the word around Raleigh is that Nifong is “sweating bullets regarding the NC Bar charges and is trying to negotiate a settlement.” After reading his attorneys’ filing, I can understand why Nifong is so nervous.

Hat tip: K.W.

The Nifong Response

Broadly speaking, the Bar had made three charges against Mike Nifong:

(1) His inflammatory public comments violated Rule 3.8(f) of the bar’s Code of Professional Responsibility, which states that prosecutors must, “except for statements that are necessary to inform the public of the nature and extent of the prosecutor's action and that serve a legitimate law enforcement purpose, refrain from making extrajudicial comments that have a substantial likelihood of heightening public condemnation of the accused.”

(2) Some of these comments—particularly his speculation that condoms might have been used—constituted “conduct involving dishonesty, fraud, deceit, or misrepresentation.”

(3) The conspiracy into which he entered with Dr. Brian Meehan to withhold exculpatory DNA evidence violated provisions of both the state bar’s ethics code and at least three North Carolina laws.

Nifong’s defenses—offered both in a just-released letter by the defendant himself, dated December 28, and in a memorandum of law submitted yesterday by his two attorneys—are, to put it mildly, unconvincing. Moreover, it appears as if in the response, Nifong inadvertendly disclosed that he violated another provision of the bar's ethics code.

1.) Inflammatory Public Statements

This allegation primarily involves Nifong’s pre-primary publicity barrage, but also addresses some comments he made after securing indictments, such as his rambling e-mail to Susannah Meadows of Newsweek.

Nifong offers five lines of defense:

(a) All of his public statements were based on information he was fed by police or medical personnel;
(b) Rule 3.8(f) applies only after indictments have been secured, and can be trumped by other concerns;
(c) Rule 3.6, comment 7 supersedes Rule 3.8(f) when prosecutors so choose;
(d) He was naïve.
(e) The Bar should take his word when he says he didn’t intend to heighten “public condemnation of the accused.”

Nifong goes out of his way to implicate the police. Many of his inflammatory public statements, Nifong contends, were “consistent with matters of public record as outlined in the affidavit attached to the Application for Nontestimonial Identification Order.” So if he misled the public, it was because the police (or SANE nurse-in-training Tara Levicy) fed him misleading information.

Nifong argues that most of his statements “were made at a time when no individual suspects had been identified,” and therefore the requirements of 3.8(f) didn’t apply. Even if they did apply, he suggests, his statements had other motives: “to reassure the community that the case was being actively investigated by the Durham Police Department in an effort to obtain assistance in receiving evidence and information necessary to further the criminal investigation.”

These claims are absurd. Suspects had been identified—46 of them, through a nontestimonial order initiated by Nifong’s own office. As Duke Law professor Thomas Metzloff correctly noted, “There was an accused, and the accused was the Duke lacrosse team-a defined group of people, identifiable and defined by Nifong in having them all give DNA samples. There clearly was an accused in the sphere of the rule.” Moreover, Durham has a mayor, and a city manager, and a police chief, and a Police Department spokesperson, any or all of whom could have “reassured the community” or launched “an effort to obtain assistance in receiving evidence and information necessary to further the criminal investigation.” Nifong never explains why he had to fulfill this role (other than the obvious need of heightening his public name recognition before the primary).

As for statements made after he obtained indictments, Nifong claims that he was “entitled” to speak out “pursuant to comment [7] to Rule 3.6 of the Rules of Professional Conduct,” which states that “extrajudicial statements that might otherwise raise a question under this Rule may be permissible when they are made in response to statements made publicly by another party, another party’s lawyer, or third persons, where a reasonable lawyer would believe a public response is required in order to avoid prejudice to the lawyer’s client . . . Such responsive statements should be limited to contain only such information as is necessary to mitigate undue prejudice created by the statements made by others.”

This claim is, frankly, bizarre. Who was Nifong’s “client”? The accuser? The city of Durham? His political needs? His pension fund? Cy Gurney, his wife?

If the Bar won’t accept his legal reasoning, Nifong asserts naïveté: “Defendant further admits that at the time he made said statements that he did not fully understand the extent of the national media interest in this particular investigation and as such, he did not comprehend the effect said statements may have on any matters related to the case.”

That claim is absurd: the man who made famous the chokehold on MSNBC lacks the credibility to assert that “he did not fully understand the extent of the national media interest in this particular investigation.”

Then, finally, Nifong falls back on a laughable defense: he didn’t mean to do it. Nifong denies that any of his statements were “intended to heighten the public condemnation of an accused or that his actions were intended to heighten the public condemnation of an accused.” Nowhere in more than 40 pages does he provide any evidence to support his assertion.

This claim is absurd: the man who called the players “hooligans” and compared their “crime” to a cross-burning and a murder lacks the credibility to assert that he did not intend “to heighten the public condemnation of an accused.”

2.) “Dishonesty, Fraud, Deceit, or Misrepresentation”

This allegation chiefly involves Nifong’s repeated public suggestions that condom use might explain the lack of DNA evidence—even though the accuser not only never claimed her “attackers” used condoms, but specifically stated that they did not use condoms.

Nifong’s response was ingenious: “Defendant admits that the initial medical report indicates that the victim advised that a condom had not been used. However, based upon defendant’s experience, he has learned that a complaining witness rarely ever knows whether a condom was used in a sexual assault and as such, he denies any allegations . . . that his comments were misleading.”

I asked Kathleen Eckelt about the validity of Nifong’s assertion. She replied, “As far as the Duke case goes, I thought the accuser said from the beginning that no condom was used. As far as I can recall, I don’t think I’ve ever had a patient insist that no condom was used, then turn around and say that it was.”

3.) The DNA Conspiracy

The allegation here is that Nifong conspired with Dr. Brian Meehan to withhold exculpatory DNA evidence.

Before analyzing Nifong’s latest line of defense, it’s worth reviewing his previous explanations for his actions.

(1) He absolutely did not know about Meehan’s exculpatory test results: “The first that I heard of this particular situation was when I was served with these reports—this motion on Wednesday of this week.” (December 15, morning, in court)

(2) He absolutely did know about the results, but deliberately agreed to withhold the information for privacy reasons: “We were trying to, just as Dr. Meehan said, trying to avoid dragging any names through the mud.” (December 15, afternoon press conference)

(3) He might or might not have known about the results, but was overworked: “You know, it’s not the only case I have right now. I have two. The other one’s a quadruple homicide [which arrived in his office in mid-October].” (December 23, New York Times)

(4) He might or might not have known about the results, but, distracted by political concerns, did not provide them: “Because I had never previously been involved in a political campaign, and because I was facing an unusually contentious challenge from an unprecedented number of challengers [two!], I was not always able to give the case my full attention.” (December 28, Nifong letter to bar)

(5) He might or might not have known about the results, but, because of the incompetence of his underlings, did not provide them: “Due to the volume of material to be copied for each defendant . . . several individuals, including both attorneys and support staff, were involved in the numbering and copying of pages, which was not supervised by me. These people were . . . [not] familiar enough with the facts of the case to have known whether anything was missing.” (December 28, Nifong letter to bar)

(6) Since these incidents occurred in Judge Smith’s courtroom, and Smith neither sanctioned him nor filed an ethics complaint against him, his actions must have been acceptable. (December 28, Nifong letter to bar)

(7) He’s being held to a different standard than others: “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.” (December 28, Nifong letter to bar)

(8) People are out to get him: “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.)” (December 28, Nifong letter to bar)

So, which of these eight (8) previous defenses—some of which were mutually contradictory—would Nifong offer in his filing yesterday? None.

Instead, Nifong offered three new lines of defense:
(a) He didn’t have to turn over any material until a trial date was set;
(b) The one-sided nature of the report is irrelevant, since Nifong knew he would have to turn over the underlying data, which is easily understood;
(c) The issue is irrelevant, since he wasn’t required to turn over a “complete report,” at any stage of the process.

The first claim is amusing: it essentially says that Nifong believes he is free to misrepresent items to the court and to withhold evidence at will before a trial date is set.

Imagine how that philosophy would apply to poorer defendants, especially in a place like Durham where the prosecutors have enormous power in setting trial dates. It is a philosophy that effectively guts both the ethics code and the Open Discovery law.

The charge that he was attempting to conceal information through entering into an agreement with Meehan is non-credible, Nifong maintains, because “the underlying results of the tests and examinations performed by DSI would clearly provide that information to the Duke defendants.”

This assertion is almost comical. As an experiment, it would be interesting to force Nifong to go through 1800 pages of highly technical forensics data and see whether he could “clearly provide” the relevant findings.

Finally, at least four times, Nifong asserts that North Carolina’s Open Discovery law, the law governing NTO’s, and the Constitution all do not require the state to turn over “complete report.”

Consider the ramifications of that statement. Nifong maintains that as long as the state turns over underlying data, it can produce a report that is wholly one-sided. If defendants can afford top-rate attorneys to interpret the data, that’s fine. If they can’t, they’re out of luck. This, it’s worth reiterating, is the man the state NAACP has propped up for 10 months.

Intermingled in these responses is the damning paragraph 212, which states

At the time that defendant met with Dr. Meehan, he was focused on the question of whether evidence had been discovered that corroborated the victim’s photographic identification of the two indicted Duke lacrosse players as her assailants and whether there was any evidence to corroborate her near certain photographic identification of a third Duke lacrosse player as a third assailant. As such, as of the time of the meeting with Dr. Meehan as alleged in paragraph 212, his attention was not focused on whether trace DNA from individuals not members the Duke lacrosse team which was found on certain items tested would be material evidence which would affect the outcome of any subsequent trial. Defendant therefore denies that he made any conscious decision, at the times referenced in paragraph 212 of the Amended Complaint, as to whether trace DNA of individuals not members of the Duke lacrosse team was potentially exculpatory, as a trial date had not yet been scheduled in this matter and he was still investigating the facts of his underlying case and had not focused on whether this information was exculpatory.

This statement is an admission that Nifong violated Rule 3.8, whose comment 1 affirms that “a prosecutor has the responsibility of a minister of justice and not simply that of an advocate; the prosecutor’s duty is to seek justice, not merely to convict.”

In paragraph 212, Nifong admitted that he was not looking at all the evidence, including evidence of innocence; instead, he was looking solely for evidence to convict. Finally, a few extraneous items from the filing:

(1) Nifong accuses Sgt. Gottlieb and Capt. Lamb of being misinformed when, on March 24, they memorialized that he was now in charge of the investigation.

(2) Nifong denies seeing Dr. Meehan on April 10, to be informed that no DNA matches existed to Reade Seligmann or Collin Finnerty. Instead, he says this meeting didn’t occur until April 21. This claim contradicts recollections of Meehan, Gottlieb, and Himan; and Nifong didn’t challenge it in court during Meehan’s December 15 testimony.

(3) Nifong concedes that ADA David Saacks filed a motion stating that the DNA tests would exonerate the innocent, but “denies any inference that he was bound by representations made by subordinates in his office prior to his having knowledge of the case.” This is an extraordinary claim: carried to its logical conclusion, it would suggest that prosecutors’ offices all over the country could routinely make representations to the court and then, if the results didn’t come back in the preferred manner, have the DA take over the case personally and say he’s no longer bound by earlier filings.

The thesis of this filing: Nifong did nothing wrong, and if he gets the chance to engage in massive prosecutorial misconduct in the future, he’ll seize it. This is a man unethical to his core.

Cliff's Notes of Nifong Response

The full Nifong response is posted at the N&O.

The basics:

(1) Dr. Meehan, Sgt. Gottlieb, Inv. Himan, and Inv. Soucie are to blame for either providing him with inaccurate information, or for inaccurately memorializing conversations with him. All statements that he made were accurate representations of the information he had received. Despite the statements in Gottlieb’s notes and the insinuations in Soucie’s, he never directed the police investigation.

(2) In the American justice system, the state is not compelled to turn over reports of tests that it conducts. It simply has to turn over the underlying data. If defendants can afford top-rate attorneys to interpret the data, that’s fine. If they can’t, they’re out of luck. This, it’s worth reiterating, is the man the state NAACP has propped up for 10 months.

(3) Nifong has no memory of the April 10 meeting between himself, Meehan, Gottlieb, and Himan—referenced in the police notes and by Meehan in his December 15 testimony. Therefore, according top his best recollection, he sought indictments against Reade Seligmann and Collin Finnerty without knowing the results of any of Meehan’s tests.

(4) None of his public statements violated the bar’s ethics codes because either (a) he had not sought indictments, though his office had publicly identified 46 suspects, the same 46 suspects he was talking about in his public statements; (b) he was entitled to speak out under comment (7) of Rule 3.6, which states, “Finally, extrajudicial statements that might otherwise raise a question under this Rule may be permissible when they are made in response to statements made publicly by another party, another party's lawyer, or third persons, where a reasonable lawyer would believe a public response is required in order to avoid prejudice to the lawyer’s client.” Nifong’s response did not mention the identity of his “client.”

(5) Though the March 23 non-testimonial order said that DNA would exonerate the innocent, he is not bound by that order, since someone else from his office wrote it.

(6) Nifong has now provided the fourth different explanation of why he did not turn over the exculpatory DNA material to the defense. First, he stated in court that he had not heard of the issue until Dec. 13, when the defense filed a motion on the question. Second, he stated in a press conference on Dec. 15 that he had not turned the information over for privacy reasons. Third, he stated in a NYT article that he had not turned the information over because of his excessive workload. Now, he says he didn't turn the information over because he didn't have to.

(7) Despite claims by several defense attorneys, Nifong denies ever having refused to meet with defense attorneys to consider exculpatory evidence.

(8) Since a trial date had not yet been set, Nifong was under no obligation to turn over exculpatory evidence.

(9) In an example of unmitigated gall, Nifong demands that the state bar* pay his legal bills.

(10) Nifong offers a novel explanation as to why he didn't have to turn over notes of his conversations with Meehan: the defense asked for these notes, but Judges Stephens and Smith denied the requests. Left unmentioned by Nifong: Stephens and Smith denied the requests because Nifong misled them in court. This is the perfect defense: attorneys can lie to judges to get favorable rulings, and then cite those favorable rulings as justification for their misconduct.

(11) An excellent point, from a commenter at 4.40pm: "To add one more point, Nifong's 'corroboration' argument reveals a profound misunderstanding of his role in the case: as a prosecutor, he wasn't supposed to be looking for evidence of guilt and turning a blind eye to evidence of innocence; to the contrary, he was always supposed to be looking at all of the evidence. In other words, he's literally pleading one ethical failure (failing to examine all of the evidence) as a defense to an allegation that he's unethical. It's amazing that his attorneys forgot his ethical duty was to search for justice, not just evidence of guilt."

(12) This response substantially increases the likelihood of disbarment. The Bar's job is to protect the public. Nifong's response effectively says he would behave the exact same way in the future. The Bar cannot allow a rogue DA to remain in office.

*--correction

Nifong's Legacy of Misconduct

Some reactions to the expanded ethics charges filed yesterday by the State Bar:

1.) These charges suggest that the Bar’s intent is to strip Nifong of his license.

From the AP story:

• UNC law professor Joseph Kennedy: “If these allegations are true and if they don’t justify disbarment, then I’m not sure what does. It’s hard for me to imagine a more serious set of allegations against a prosecutor.”
  

• Duke law professor Thomas Metzloff: The new charges “have significantly increased the chances for a serious sanction, possibly including suspension or disbarment.”

2.) Joe Neff is prescient.

In a December 24 N&O story, Neff and Ben Niolet analyzed Nifong’s ever-changing explanations as to why he didn’t turn over exculpatory DNA evidence to the defense. The district attorney had just given an interview to the New York Times suggesting that his heavy workload led to an oversight on his part.

But this excuse, Neff calculated, “was Nifong’s third explanation why he did not turn over the evidence.” Nifong previously had claimed he hadn’t heard about the matter prior to a December 13 defense motion; and then made the extraordinary claim that “we were trying to, just as Dr. Meehan said, trying to avoid dragging any names through the mud.”

The Bar noticed Nifong’s evasions as well—and added a fourth. On December 28, in a letter to the Bar, the D.A. returned to justification #2—a desire to protect privacy rights.

Yet, as paragraph 283 of the amended complaint noted, Meehan’s report listed the names and DNA profiles of two lacrosse players not then indicted (Dave Evans and Kevin Coleman), plus the names of all lacrosse players who had contributed DNA specimens.

In an extraordinary move, the Bar used that information to deem Nifong’s response not only unpersuasive but an ethical violation in and of itself. Nifong’s December 28 assertions that privacy concerns explained his approach to not turning over the DNA test results, the amended complaint argued, “were knowingly false statements of material fact made in connection with a disciplinary matter.”

[In an article published in today's Times, Duff Wilson (writing under the sole byline, alas) paraphrases Nifong's December Times interview to offer yet another explanation for his withholding the evidence. "In an interview last month," writes Wilson, "Mr. Nifong agreed that the DNA results had been potentially exculpatory, but said they had not seemed important to him because he was no longer then pursuing the case on the basis of DNA evidence."

The original article had mentioned the first point, but not the second. In any case, the distinction is irrelevant--the Open Discovery statute requires turning over all evidence, whether or not the prosecution considers it exculpatory. And if Nifong were no longer then pursuing the case on the basis of DNA evidence, how to explain the May decision to indict Dave Evans?]

3.) Nifong’s false representations to the court over the past several months were damning.

Nifong, the amended complaint makes clear, does not deny that Dr. Meehan told him of the exculpatory DNA evidence. That admission alone contradicted multiple written or oral statements by Nifong to various judges in the case.

On May 18, Nifong wrote, “The State is not aware of any additional material or information which may be exculpatory in nature with respect to the Defendant.” At the hearing where he stood idly by as a hate group member threatened Reade Seligmann, Nifong also Judge Ronald Stephens, “I’ve turned over everything I have.”

On June 22, Nifong again deceived the gullible Stephens, who wanted to make sure that he had discussed with Dr. Meehan nothing other than the contents of Meehan’s report. “That’s pretty much correct, your Honor.”

On September 22, Nifong deceived the new judge, Osmond Smith.

• Smith: “So you represent there are no other statements?”
• Nifong: “No other statements. No other statements made to me.”

4.) The breadth of the ethics complaint was surprising.

On the surface, the amended complaint dealt only with the Nifong-Meehan conspiracy and Nifong’s false representations of the duo’s agreement. But at least two other paragraphs of the amended complaint touched upon additional questionable behavior by Nifong.

Paragraph 205 noted that Nifong “sought and obtained these indictments [against Seligmann and Finnerty] . . . despite his office’s prior representation in the application for the NTO [non-testimonial order] that the ‘DNA evidence will immediately rule out any innocent persons.’”

Paragraph 206 added that Nifong “repeatedly refused offers from counsel for the players who were eventually indicted to consider evidence and information that they contended either provided an alibi or otherwise demonstrated that their clients did not commit any crime.”

These moves hinted at other ethical violations, specifically a violation of Rule 3.8, comment 2, which states that “a prosecutor should not intentionally avoid pursuit of evidence merely because he or she believes it will damage the prosecutor’s case or aid the accused.”

The Bar didn’t need these two paragraphs to make its case in today’s amended complaint; but they provided a compelling reminder of Nifong’s general aura of misconduct.

5.) The amended complaint made several subtle, interesting points.

The complaint cast a negative light on Nifong’s disparate approaches to similar issues. For instance, the Bar noted, when the defense requested the underlying data and complete file from Dr. Meehan, the D.A. accused defense attorneys of seeking a “witch hunt list.” He read a letter into the record from Meehan expressing privacy concerns. He complained about the excessive cost of the move.

Yet, as the Bar observed, when the defense requested the identical material from the SBI, Nifong “raised no such concerns or objections.” Could it have been that Nifong had something to hide in the Meehan material?

On a second point, the amended complaint argued that Nifong committed a “continuing violation” of the Open Discovery statute up to the very second that AG Roy Cooper took over the case.

As paragraph 255 explains, “Even when Nifong ultimately provided the underlying documents and materials on October 27, he did not provide the Duke Defendants a complete report from DSI setting forth the results of all its tests and examinations, including the potentially exculpatory DNA test results.”

On a third point, Nifong’s non-testimonial order ultimately backfired on him. At the time, it served the D.A.’s purpose to have the 46 lacrosse players engage in a “perp walk” before tipped-off media representatives.

But because the defense accepted the non-testimonial order, by law, Nifong was required to hand over to the players or their attorneys a “copy of any reports of test results as soon as the reports are available.” Nifong, of course, didn’t do so.

6.) There’s no longer much mystery to why Inv. Linwood Wilson picked December 21 to interview the accuser for the first time.

The amended complaint states that the initial grievance letter from the Bar about Nifong’s withholding the DNA evidence arrived on December 20. “Coincidentally,” Nifong decided to have the accuser interviewed the next day, when she produced a story that downplayed the significance of the DNA evidence that Nifong had withheld.

7.) The closing section underscores the extent of the Bar’s concerns.

The complaint traces a “systematic abuse of prosecutorial discretion in the underlying criminal cases,” accusing Nifong of having “engaged in conduct prejudicial to the administration of justice.”

It asserts that Nifong committed professional misconduct, violating Rule 8.4(d) of the bar’s ethics code. Comment 4 of the rule clarifies: “A showing of actual prejudice to the administration of justice is not required to establish a violation of paragraph (d). Rather, it must only be shown that the act had a reasonable likelihood of prejudicing the administration of justice.” And, as Comment 6 outlines, “Lawyers holding public office assume legal responsibilities going beyond those of other citizens. A lawyer’s abuse of public office can suggest an inability to fulfill the professional role of lawyers.”

The amended report paints a picture of a prosecutor who has flagrantly violated multiple rules of professional conduct over a period of many months, and showed no indication that his behavior was going to let up in any way even as he turned the case over to the attorney general.

How can Nifong possibly not take a leave of absence as District Attorney until these charges are resolved?

The Bar Lays Down the Law

The Bar's ethics complaint against Mike Nifong has been amended, to include the far more serious charge of withholding evidence. The specific issue: his decision to enter into an agreement with Dr. Brian Meehan to intentionally withhold exculpatory DNA evidence, and then state repeatedly to the court that he was aware of no additional exculpatory evidence.

The complaint says that Nifong lied to the court at least five times--either in person or in writing.

The amended complaint has just been posted; I'll update a bit later today.

The N&O is also reporting that past ethics questions have been raised against Nifong investigator Linwood Wilson--who, in a highly unusual move in this case, elected to interview the accuser without any other law enforcement personnel present. In this interview, of course, she dramatically changed her story, seeming to adjust it to fit various holes in the case.

Analyzing the Complaint

“Nifong engaged in conduct involving dishonesty, fraud, deceit, or misrepresentation . . .”

--The North Carolina State Bar v. Michael B. Nifong, p. 16.

In yet another extraordinary turn of events in a case that has involved many such turns, yesterday afternoon, just after 5.00pm, the North Carolina State Bar announced that it had filed an ethics complaint against Mike Nifong. The filing focused solely on his procedurally improper public statements, which the Bar (correctly) contends violated Rule 3.8(f) of the Code of Professional Responsibility. That provision requires prosecutors to “refrain from making extrajudicial comments that have a substantial likelihood of heightening public condemnation of the accused.”

Importantly, the bar complaint also alleges that Nifong’s violations of 3.8(f) were of such magnitude that they ran afoul of Rule 8.4(c) and Rule 8.4(d), which state that prosecutors cannot “engage in conduct involving dishonesty, fraud, deceit or misrepresentation”; or “engage in conduct that is prejudicial to the administration of justice.”

1.) The Timing

The bar was not required to publicly release its complaint. Indeed, the bar could have filed the complaint under seal, with the understanding that the Disciplinary Hearing Commission would address the Nifong matter after the lacrosse case ended.

That the bar acted publicly—and did so out of the blue, not even waiting for its next scheduled meeting, in mid-January—can only be interpreted as an unequivocal repudiation of Nifong by the legal leadership of his state. It is no coincidence, in short, that the complaint was publicly released less than a week after Nifong’s most bizarre move to date—his manipulation of the evidence to drop charges of rape but retain allegations of sexual assault, in light of the December 15 hearing.

In some respects, the symbolism of the filing is almost as important as the substance.

That the bar would act in this manner suggests that the complaint is only the first shoe to drop, and that other actions will be taken against Nifong. If the bar found Nifong worthy of discipline for his extra-judicial comments, then it surely would have to consider an ethics complaint against Nifong for his conspiracy with Dr. Brian Meehan to hide the exculpatory evidence. Given the recent nature of this revelation, no public filing on this matter could occur at this stage, since procedurally, Nifong is entitled to a response period before the bar decides whether to move forward.

Also, the bar would at least have to consider ethics complaints on issues relating to Nifong’s ordering the police to violate their own procedures in the flawed April 4 lineup. Yet it would be unlikely that a complaint would be filed as long as the matter is pending before Judge Smith.

2.) The Specifics

The complaint divides Nifong’s comments into six types of violations. The worst type, it contends, involved the D.A.’s public speculation that a condom might have been used, when he knew or should have known that the accuser had explicitly stated that her alleged assailants did not use condoms (at least in the version of events she was offering at the time).

The two remarks the bar highlights:

(March 31, MSNBC): “If a condom were used, then we might expect that there would not be any DNA evidence recovered from say a vaginal swab.”

(April 11, Charlotte Observer): “I would not be surprised if condoms were used. Probably an exotic dancer would not be your first choice for unprotected sex.”

With these remarks, according to the bar, “Nifong engaged in conduct involving dishonesty, fraud, deceit, or misrepresentation.” The bar correctly kept in mind the context of DNA and Nifong’s public statements. In the March 23 NTO and then in public statements on March 27 and March 28, Nifong had repeatedly asserted that DNA existed and would both clear and innocent and identify the guilty. Then, suddenly, the DNA tests came back without a match—and, according to the bar, the D.A. decided to engage in “fraud” and “deceit” to explain away the results.

Consider the ramifications of this wording, and how it would affect any trial or even the February 5 hearings. Defense attorneys do not need to undermine Nifong’s credibility—the State Bar has already publicly associated him with such characteristics as dishonesty, fraud, deceit, and misrepresentation.

In the 17-page complaint—the ethics equivalent of an indictment—the bar laid out the five other ways in which Nifong’s improper statements affected the proper administration of justice:

• Improper commentary on the lacrosse players’ invocation of their constitutional rights;
• Improper commentary on the evidence to be presented in the case;
• Improper commentary about the guilt of the accused;
• Improper commentary about the “character, credibility, and reputation of the accused”;
• Improperly making statements that heightened public condemnation of the accused.

In the process, the complaint detailed many of the quotes that close followers of the case long had have found outrageous—and, indeed, that were many months ago indexed, in one of the most important archival developments of the case, by Nancy Kidder.

Cited statements included:

• “I’m disappointed that no one has been enough of a man to come forward.”
• “One would wonder why one needs an attorney if one was not charged and had not done anything wrong.”
• “There is evidence of trauma in the victim’s vaginal area that was noted when she was examined by a nurse at the hospital. And her general demeanor was suggestive of the fact that she had been through a traumatic situation.”
• “Somebody had an arm around her like this, which she then had to struggle with in order to be able to breathe, and it was in the course of that struggle that the fingernails—the artificial fingernails broke off.” (the infamous “chokehold” interview)
• “The contempt that was shown for the victim, based on her race was totally abhorrent. It adds another layer of reprehensibleness, to a crime that already reprehensible.”

The motion itself is here. The cumulative effect of these quotes—inflammatory statement after inflammatory statement; misleading assertion after misleading assertion; inaccurate claim after inaccurate claim—is extremely powerful.

3.) The defendant (Nifong) has a very weak case.

Nifong has offered a variety of defenses for his actions: (1) that he didn’t “accuse anybody of any crime”; (2) that he just wanted to encourage people to “cooperate with the investigation”; (3) that he sought to “effectuate a more accurate public discourse on an issue with great social resonance”; (4) that Rule 3.8(f) doesn’t apply until people are indicted; and (5) his speaking out reassured people that “the community was in good hands with respect to this case, and they did not need to worry about it.”

Item (5), of course, is transparently absurd in light of the bar’s filing. The bar makes short shift of items 1-3, as well.

The complaint spends some more time with item (4), noting that Nifong made at least 10 procedurally improper statements “after suspects had been identified.”

4.) Nifong has become a pariah among serious thinkers about the law.

Two hours before the ethics complaint became public, the AP’s Aaron Beard filed a story filled with condemnations of Nifong from prominent law professors. Beard apparently couldn’t find any law professor to defend Nifong.

Loyola Law’s Stan Goldman: if Nifong succeeds in getting the case to trial, “This guy would be the poster child in public defenders' offices around the country as the quintessential bad DA.”

Duke Law’s James Coleman, the shining light of this case: “I don’t see how any member of the public can have confidence in this case. I think it’s making a mockery of our criminal justice system to permit this guy to keep fumbling along. It’s either total incompetence or it's misconduct on a scale that is extraordinary.”

According to the AP article, even former Nifong enablers such as Woody Vann and Norm Early have essentially ceased defending him.

5.) By making the complaint public, the bar has presented Nifong with a conflict of interest in remaining on the case, since he is now a defendant on ethics charges growing out of his conduct in the case.

The result: he likely will be recuse himself or be removed as prosecutor. Since any member of his office would face the same conflict of interest as Nifong, it’s hard to see how Judge Osmond Smith could allow a Durham assistant district attorney to prosecute the case.

Such a development would bump up the case to the special prosecutions division of the Attorney General’s office. But why would Roy Cooper want to take over a sinking ship? And would any other DA in the state be willing to step in and prosecute the case if Cooper refuses to involve himself? In short, the bar’s actions raise the possibility that this could become the case without a prosecutor—setting the stage for a dismissal.

A final note: readers of the comments section of this blog should recall that DIW reader Kemperman spoke personally with a member of the bar’s executive board several weeks ago, and foretold of this move by the bar. A major hat tip is in order.

A few weeks before the election, Friends of Duke spokesperson Jason Trumpbour predicted that Governor Easley would choose the next D.A.—immediately if Lewish Cheek prevailed, sometime thereafter if Nifong won, given the likelihood of ethics charges. In light of the bar’s actions, Trumpbour looks prescient.

The Complaint

Some quick reactions, with more detailed analysis to follow.

1.) This filing is the beginning of the end of Nifong’s career as Durham D.A.

The filing focuses solely on his procedurally improper public statements, which the Bar (correctly) contends violated Rule 3.8(f) of the Code of Professional Responsibility. That provision requires prosecutors to “refrain from making extrajudicial comments that have a substantial likelihood of heightening public condemnation of the accused.”

Importantly, the bar complaint also alleges that Nifong’s violations of 3.8(f) were of such magnitude that they ran afoul of Rule 8.4(c) and Rule 8.4(d), which state that prosecutors cannot “engage in conduct involving dishonesty, fraud, deceit or misrepresentation”; or “engage in conduct that is prejudicial to the administration of justice.”

2.) There is no reason to believe that the bar will not take other actions against Nifong.

The bar surely would have to consider filing an ethics complaint against Nifong for his conspiracy with Dr. Brian Meehan to hide the exculpatory evidence; given the recent nature of this revelation, no public filing on this matter could occur at this stage.

Also, the bar would at least have to consider ethics complaints on issues relating to Nifong’s ordering the police to violate their own procedures in the flawed April 4 lineup. Yet it would be unlikely that a complaint would be filed as long as the matter is pending before Judge Smith.

3.) The bar dismisses Nifong’s canard that Rule 3.8(f) applied only once he had obtained charges against Reade Seligmann and Collin Finnerty.

First, the complaint notes that many of Nifong’s procedurally improper statements occurred after charges were filed.

Second, the complaint correctly reasons that nothing in the wording of Rule 3.8(f) suggests that it applies only after indictments have been obtained, rather than (as occurred here) once suspects have been identified.

4.) The 17-page complaint—the ethics equivalent of an indictment—is detailed.

The bar contends that Nifong’s improper statements affected the proper administration of justice in at least six ways:

Improper commentary on the lacrosse players’ invocation of their constitutional rights;
Improper commentary on the evidence to be presented in the case;
Improper commentary about the guilt of the accused;
Improperly using hypothetical comments to explain away the existence of exculpatory evidence;
Improper commentary about the “character, credibility, and reputation of the accused”;
Improperly making statements that heightened public condemnation of the accused.

5.) One set of these violations was worse than all the others.

“Nifong engaged in conduct involving dishonesty, fraud, deceit, or misrepresentation” in his speculation that a condom might have been used, when he knew or should have known that the accuser had explicitly stated that her alleged assailants did not use condoms.

6.) It’s hard to see how Nifong can remain on the case when he is a defendant on ethics charges growing out of his conduct in the case.