Topic category:  Other/General

To: Potbangers, 88ers, NC NAACP, Wendy Murphy and their ilk
(That is, those people who, the bogus Duke case, tried to milk)

Message: Below is the amended part of the ethics complaint.  
What a false picture you folks tried so hard to paint.

Go ahead and read it.  Mr. Nifong's now toast.
Yet the Duke Three, not he, you tried to roast.

The Threes’ llives won’t be the same.
For that, all of you bear great blame.

Mr. Nifong, you folks proceeded to empower.
Thus, his “15 minutes” ran more than an hour.

He fooled enough of the voters to be elected. He should have been unanimously rejected

The gang rape claim was a ludicruous lie.
Yet Crystal was your gal; Mike, your guy.

Still, the truth finally prevailed.
Now, fairly, they will be nailed.

All of you really should be ashamed.
The Three’s innocence, proclaimed.

You chose to exploit their plight.
Of course, it was wrong, not right.

There was no credible evidence.
Not all of you folks are that dense.

Fortunately, your victims did survive.
In the future, may they all thrive.

182. During the investigation of the Duke Lacrosse rape cases, various pieces of evidence were collected for later DNA testing.

183. On March 14, 2006. a Sexual Assault Nurse Examiner (SANE) and physician examined the alleged victim and generated numerous evidentiary items, commonly referred to as a ‘rape kit.’

184. The alleged victim asserted that she had been vaginally, rectally, and orally penetrated with no condom used during the assault and with at least some of the alleged perpetrators ejaculating.

185. The rape kit contained cheek scrapings, oral, vaginal, and rectal swabs, a pubic hair combing, and a pair of the alleged victim’s underwear.

186. On March 16, 2006, the three residents of 610 North Buchanan, who were captains of the Duke lacrosse team, voluntarily assisted law enforcement in executing a search warrant at their residence. During the search, law enforcement seized numerous pieces of evidence for later testing, including several false fingernails in the bathroom and bedroom of the residence.

187. These three residents also provided voluntary statements and submitted DNA samples for comparison testing purposes. One of these three individuals was Dave Evans, who was subsequently indicted in the alleged crimes.

188. On March 23, 2006, swabbings of all 46 Caucasian members of the Duke University 2006 Men’s Lacrosse Team (hereafter referred to collectively as, ‘lacrosse players’) were obtained pursuant to the NTO sought by Nifong’s office.

189. In the application seeking the NTO, Nifong’s office represented that ‘the DNA evidence requested will immediately rule out any innocent persons, and show conclusive evidence as to who the suspect(s) are in the alleged violent attack upon this victim.’

190. On or about March 24, 2006, Nifong assumed primary responsibility for prosecuting any criminal charges resulting from the investigation (hereafter, ‘underlying criminal cases’) and directed the Durham Police Department (DPD) to go through him for any directions as to how to conduct the factual investigation of those matters.

191. On March 27. 2006, the rape kit items and referenced DNA samples from the lacrosse players were delivered to the SBI lab.

192. On March 28, 2006, the SBI lab examined the items from the rape kit and was unable to find any semen, blood, or saliva on any of those items.

193. On or about March 30, 2006, Nifong had a conversation with an agent in the DNA section of the SBI lab about the status of its testing of evidentiary items in the case.

194. On April 4, 2006, at Nifong’s direction, Investigator Michelle Soucie of DPD contacted Dr. Brian Meehan, president and director of DNA Security, Inc. (DSI) a private laboratory located in Burlington, North Carolina.

195. The purpose of this contact was to determine if DSI could perform more sensitive or sophisticated DNA testing than the SBI lab.

196. On April 5, 2006, Nifong’s office sought and obtained an Order permitting the transfer of the rape kit items to DSI from the SBI for Y chromosome DNA testing.

197. As justification for its order, the Court noted that the additional testing Nifong’s office sought in its petition was ‘believed to be material and relevant to this investigation, and that 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.’

198. The rape kit items were subsequently transferred to DSI, who shortly thereafter began testing and analysis on those items.

199. Between April 7 and April 10, 2006, DSI performed testing and analysis of DNA characteristics found on the rape kit items.

200. In performing this initial testing, DSI found DNA characteristics from up to four different males on epithelial and sperm fractions from several pieces of evidence from the rape kit.

201. By April 10, 2006, DSI had analyzed the DNA characteristics from at least some of the evidence specimens from the rape kit containing multiple male DNA characteristics and excluded all of the lacrosse players as potential contributors of the DNA it had analyzed.

202. On April 10, 2006, Nifong met with Dr. Meehan and two DPD officers at the DSI office.

203. At that meeting, Dr. Meehan discussed with Nifong the results of the analyses performed by DSI to that point, including those referred to in paragraphs 199-201 above.

204. On April 17, 2006, Nifong sought and obtained indictments against Collin Finnerty and Reade Seligman for first-degree rape, first-degree sex offense, and kidnapping. (The indicted lacrosse players are hereafter referred to collectively as, ‘the Duke Defendants’)

205. Nifong sought and obtained these indictments after receiving the preliminary results from Dr. Meehan and despite his office’s prior representation in the application for the NTO that the ‘DNA evidence requested will immediately rule out any innocent persons.’

206. Before the Duke Defendants were indicted, 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.

207. On April 19, 2006, two days after being indicted, Duke Defendant Reade Seligman through counsel served Nifong with a request or motion for discovery material, including witness statements, the results of any tests, all DNA analysis, and any exculpatory information, among various other requested items.

208. By April 20, 2006, DSI had performed additional DNA testing and analysis and found DNA characteristics from multiple males on at least one additional piece of evidence from the rape kit.

209. By April 20, 2006, from its testing and analysis, DSI had determined that all the lacrosse players could be excluded as contributors of the numerous DNA characteristics from multiple males found on several evidence items from the rape kit. Stated differently, DSI had determined that none of the 1)NA from multiple males found on several items from the rape kit matched any of the lacrosse players, including the two players who had already been indicted.

210. On April 21, 2006, Nifong again met with Dr. Meehan and the two DPD officers to discuss all of the results of the DNA testing and analyses performed by DSJ to date.

211. At this April 21 meeting, Dr. Meehan told Nifong: (a) that DNA from multiple males had been found on several items from the rape kit, and (b) that all of the lacrosse players, including the two players that Nifong had already sought and obtained indictments against, were excluded as possible contributors of this DNA because none of their DNA profiles matched or were consistent with any of the multiple DNA characteristics found on the rape kit items.

212. The evidence and information referred to above in paragraphs 200-211 was potentially exculpatory of the Duke Defendants or other lacrosse player suspects in the investigation because it tended to negate the guilt of the accused (hereinafter referred to as ‘potentially exculpatory DNA test results’ or ‘potentially exculpatory DNA evidence’).

213. During one of the meetings in April, Nifong discussed and agreed with Dr. Meehan that the report to be produced concerning DSI’s tests and examinations would only include tests for which DNA found on specific evidence items matched or was consistent with DNA from known reference specimens, the so-called ‘positive results.’

214. Nifong and Dr. Meehan agreed that the final report would not include all of the results of the tests and examinations performed by DSI but would be limited only to the ‘positive’ results.

215. This agreement between Nifong and Dr. Meehan meant that the potentially exculpatory DNA evidence and test results would not be included in DSI’s report and, therefore, would not be provided to the Duke Defendants or the other player suspects.

216. On May 12, 2006, Nifong again met with Dr. Meehan and discussed the final results of DSI’s testing, all of which had been completed by that point.

217. On that date, consistent with his prior agreement with Nifong, Dr. Meehan provided Nifong a 10-page report produced by DSI, which set forth the results of tests on only three evidence specimens containing DNA characteristics that were consistent with DNA profiles from several known reference specimens.

218. The three items in DSI’s report concerned DNA characteristics on two fingernail specimens that were at least partially consistent with the DNA profile of two unindicted lacrosse players and a sperm fraction from the vaginal swab that was consistent with the DNA profile of the alleged victim’s boyfriend.

219. The report contained no reference to any of the multiple unidentified male DNA characteristics, even though it listed the evidence items on which DSI had discovered this evidence. Moreover, the report did not even note that testing had been performed on those specific items on which the potentially exculpatory DNA evidence had been discovered.

220. The report contained no statement indicating that DSI had discovered multiple male DNA characteristics on any evidence specimen other than the three specifically set forth in the report.

221. Nifong personally received DSI’s report from Dr. Meehan and later that day provided it to counsel for the two Duke Defendants who had been indicted and for Dave Evans, among others.

222. When he received DSI’s report and provided it to counsel for the Duke Defendants, Nifong had just met with Dr. Meehan and was fully aware of the test results that were omitted from the DSI report, including the potentially exculpatory DNA test results.

223. Three days later, on May 15, 2006, Nifong sought and obtained an indictment against Dave Evans for first-degree rape, first-degree sex offense, and kidnapping.

224. On May 17, Duke Defendant Collin Finnerty served discovery requests on Nifong, which specifically asked that any expert witness ‘prepare, and furnish to the defendant, a report of the results of any (not only the ones about which the expert expects to testify) examinations or tests conducted by the expert.’

225. On May 18, 2006, Nifong provided various discovery materials to all three Duke Defendants, including another copy of DSI’s report, in connection with a hearing in the case on that same day.

226. The discovery materials Nifong provided on May 18 did not include any underlying data or information concerning DSI’s testing and analysis. The materials Nifong provided also did not include any documentation or information indicating the presence of the potentially exculpatory DNA evidence or test results.

227. Nifong’s failure to provide a complete report from DSI containing the results of all DSI’s tests and examinations, including the potentially exculpatory DNA test results, was a violation of N.C. Gen. Stat. l5A-282, 15A-903(a)(1), and 15A-903(a)(2).

228. Nifong also did not provide in the discovery materials any written or recorded memorialization of the substance of Dr. Meehan’s oral statements made during his meetings with Nifong in April and May 2006 concerning the results of all DSI’s tests and examinations, including the exculpatory DNA test results (hereafter, ‘memorializations of Dr. Meehan’s oral statements’).

229. Nifong’s failure to provide the Duke Defendants with memorializations of Dr. Meehan’s oral statements was a violation of N.C. Gen. Stat. 15A-903(a)(1).

Misrepresentations and False Statements to Court and Opposing Counsel

230. Accompanying the discovery materials, Nifong served and filed with the Court written responses to the Duke Defendants’ discovery requests. In these responses, Nifong stated: ‘The State is not aware of any additional material or information which may be exculpatory in nature with respect to the Defendant.’

231. At the time he made these representations in his responses, Nifong was aware of the potentially exculpatory DNA test results and had provided the Duke Defendants only the DSI report, which contained no analysis of or other reference to the potentially exculpatory DNA test results.

232. At the time he made the representations in his discovery responses, Nifong also was aware that he had not provided the Duke Defendants with memorializations of Dr. Meehan’s oral statements, as he was required to do by N.C. Gen. Stat. 15A-903(a)(1).

233. Nifong’s above statements contained in his discovery responses were misrepresentations and false statements of material fact made to a tribunal and to third parties in the course of representing a client.

234. At the May 18, 2006 hearing, the Court asked Nifong if he had provided the Duke Defendants all the discovery materials.

235. In response to the Court’s inquiry, Nifong stated: ’I’ve turned over everything I have.’

236. Nifong’s response was a misrepresentation and false statement of material fact made to a tribunal because the materials he provided the Duke Defendants did not include any documentation or information indicating the presence of the potentially exculpatory DNA evidence or test results or memorializations of Dr. Meehan’s oral statements about those and other test results.

237. In his May 18, 2006 discovery responses, Nifong also identified Dr. Meehan and R.W. Scales, another person at DSI, as expert witnesses reasonably expected to testify at the trial of the underlying criminal cases pursuant to N.C. Gen. Stat. § I5A-903(a)(2). Nifong also gave notice in these discovery responses of the State’s intent to introduce scientific data accompanied by expert testimony.

238. On June 19, 2006, counsel for the Duke Defendants requested various materials from Nifong, including a report or written statement of the meeting between him and Dr. Meehan to discuss the DNA test results.

239. This request was addressed at a hearing before the Court on June 22, 2006.

240. In response to this request and in response to the Court’s inquiry, Nifong represented that no information beyond what was in DSI’s report was discussed at the meeting with Dr. Meehan.

241. Nifong represented to the Court: ‘That’s pretty much correct, your Honor. We received the reports, which he has received, and we talked about how we would likely use that, and that’s what we did.’

242. Nifong’s representations to the Court at the June 22 hearing were misrepresentations and false statements of material fact to a tribunal because Nifong had discussed with Dr. Meehan, including just over a month earlier, the potentially exculpatory DNA test results which were not included in DSI’s report.

243. After the June 22 hearing, the Court entered an Order directing Nifong to provide Collin Finnerty and later all the Duke Defendants with, among other things: (1) ‘results of tests and examinations, or any other matter or evidence obtained during the investigation of the offenses alleged to have been committed by the defendant,’ (2) statements of any witnesses taken during the investigation, with oral statements to be reduced to written or recorded form, and (3) a report of the results of any examinations or tests conducted by any expert witness the State reasonably expected to call as a witness at trial.

244. On August 31, 2006, the Duke Defendants collectively filed a joint omnibus motion to compel discovery. This motion sought, among other things, the complete file and all underlying data regarding DSI’s work and the substance of any discoverable comments made by Dr. Meehan during his meetings with Nifong and two DPD officers on April 10, April 21, and May 12, 2006.

245. These discovery requests were addressed by the Court at a hearing on September 22, 2006.

246. In this hearing, counsel for the Duke Defendants specifically stated that they were seeking the results of any tests finding any additional DNA on the alleged victim even if it did not match any of the Duke Defendants or other individuals for whom the State had provided DNA specimens to the experts.

247. In response to a question from the Court, Nifong represented that DSI’s report encompassed all tests performed by DSI and everything discussed at his meetings with Dr. Meehan in April and May 2006.

248. The following exchange occurred immediately thereafter on the Duke Defendants’ request for memorializations of Dr. Meehan’s oral statements: Judge Smith: ‘So you represent there are no other statements from Dr. Meehan?’ Mr. Nifong: ‘No other statements. No other statements made to me.’

249. Nifong’s above statements and responses were misrepresentations and false statements of material fact to a tribunal because Nifong had discussed with Dr. Meehan only several months earlier the potentially exculpatory DNA test results and DSI’s report did not include these results.

250. In the same hearing, Nifong referred to the Duke Defendants’ request for the complete file and the underlying data from DSI as a ‘witch-hunt list.’

251. Nifong also read into the record a letter prepared by Dr. Meehan at his request, which letter objected to the Duke Defendants’ request and cited privacy and cost concerns.

252. Nifong raised no such concerns or objections in response to the Duke Defendants’ request for the SBI’s complete file and underlying data.

253. The Court ordered Nifong to provide the Duke Defendants the complete file and underlying data from both the SBI and DSI.

254. On October 27, 2006, Nifong provided 1,844 pages of underlying documents and materials to the Duke Defendants pursuant to the Court’s September 22, 2006 order.

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

256. Nifong’s failure to provide a complete report from DSI containing all of DSI’s test results constituted a continuing violation of N.C. Gen. Stat. 15A-282, l5A-903(a)(1), and l5A-903(a)(2).

257. With the discovery materials he provided on October 27, Nifong also did not provide in written, recorded or any other form memorializations of Dr. Meehan’s oral statements concerning the results of all examinations and tests conducted by DSI.

258. Nifong’s failure to provide the Duke Defendants memorializations of Dr. Meehan’s oral statements in written, recorded or any other form was a continuing violation of N.C. Gen. Stat. 15A-903(a)(1).

259. After an extensive and exhaustive review of the documentation Nifong provided on October 27, counsel for the Duke Defendants determined that DSI’s report had not included the results of all DNA tests that DSI had performed and further realized that the report excluded the potentially exculpatory DNA test results and evidence.

260. On December 13, 2006, based on this review and determination, the Duke Defendants filed a motion entitled ‘Motion to Compel Discovery: Expert DNA Analysis.’

261. In this motion, the Duke Defendants set forth in detail the potentially exculpatory DNA test results and evidence that had been excluded from DSI’s report. The focus of this motion was the existence of the potentially exculpatory DNA test results and their exclusion from DSI’s report.

262. The motion did not allege or assert any attempt or agreement to conceal or hide the potentially exculpatory DNA evidence or test results.

263. This motion was addressed by the Court at a hearing on December 15, 2006.

264. In his initial comments about the motion, Nifong stated or implied to the Court that he was unaware of the potentially exculpatory DNA test results or their exclusion from DSI’s report.

265. Nifong represented to the Court in response to the Duke Defendants’ motion: ‘The first I heard of this particular situation was when I was served with these reports -- this motion on Wednesday of this week.’

266. Nifong’s statements indicating that he was unaware of the potentially exculpatory DNA test results or, alternatively, was unaware of their exclusion from DSI’s report were misrepresentations and false statements of material fact to a tribunal.

267. During the hearing, Dr. Meehan testified under oath to the following statements:

a.  he discussed with Nifong at the April 10, April 21, May 12 meetings the results of all tests conducted by DSI to date, including the potentially exculpatory DNA test results;

b.  he and Nifong discussed and agreed that ‘we would only disclose or show on our report those reference specimens that matched evidence items;’

c. DSI’s report did not set forth the results of all tests and examinations DSI conducted in the case but was limited to only some results;

d.  the limited report was the result of ‘an intentional limitation’ arrived at between him and Nifong ‘not to report on the results of all examinations and tests’ that DSI performed;

e.  the failure to provide all test and examination results purportedly was based on privacy concerns; and

f. he would have prepared a report setting forth the results of all DSI’s tests and examinations if he had been requested to do so by Nifong or other representatives of the State of North Carolina at any time after May 12.

269. Nifong’s above statement stated or implied, contrary to his earlier representations to the Court but consistent with Dr. Meehan’s testimony, that Nifong was aware of the potentially exculpatory DNA test results and was aware that this information had intentionally been omitted from DSI’s report, purportedly for privacy reasons.

270. Up through the time of the December 15, 2006 hearing on the Duke Defendants’ motion to compel expert DNA analysis, Nifong did not provide a complete report from DSI setting forth the results of all of the tests and examinations performed by DSI or memorializations of Dr. Meehan’s oral statements concerning the results of all tests performed by DSI.

271. After seeking and obtaining DNA evidence from the lacrosse players pursuant to the NTO, N.C. Gen. Stat. § I 5A-282 required that Nifong provide to all the lacrosse players who were the subject of the NTO or to their attorneys ‘a copy of any reports of test results as soon as the reports are available.’

272. Once the Duke Defendants filed voluntary discovery requests or motions beginning on April 19, 2006, N.C. Gen. Stat. 15A-903(a)(1) required that Nifong disclose to the Duke Defendants all ‘witness statements’ and mandated that all oral statements be reduced to written or recorded form.

273. N.C. Gen. Stat. 15A-903(a)(1) also required that Nifong disclose to each indicted Defendant the ‘results of tests and examinations or any other matter or evidence obtained during the investigation of the offenses alleged to have been committed by the defendant.’

274. After identifying Dr. Meehan and Mr. Scales as potential experts in his May 18, 2006 discovery responses, N.C. Gen. Stat. :1 5A-903(a)(2) required Nifong to provide the Duke Defendants with ‘a report of the results of any examinations or tests conducted by the expert.’

275. From at least May 12, 2006 through January 12, 2007, when he recused himself from the prosecution of the criminal cases, Nifong never provided the Duke Defendants a complete report setting forth the results of all examinations and tests conducted by Dr. Meehan, Mr. Scales, or others at DSI.

276. Nifong’s failure to provide a complete report of the results of all examinations and tests conducted by DSI was in violation of the United States Constitution, N.C. Gen. Stat. § l5A-282, N.C. Gen. Stat. § 15A-903(a)(1), N.C. Gen. Stat. § 15A-903(a)(2), and the Court’s June 22, 2006 order compelling discovery.

277. From at least May 12, 2006 through January 12, 2007, when he recused himself from the prosecution of the criminal cases, NifDng also never provided the Duke Defendants memorializations of Dr. Meehan’s oral statements concerning the results of all examinations and tests conducted by DSI in written, recorded or any other form.

278. Nifong’s failure to provide the Duke Defendants with memorializations of Dr. Meehan’s oral statements was in violation of the United States Constitution, N.C. Gen. Stat. § l5A-903(a)(l), and the Court’s June 22, 2006 order compelling discovery.

Misrepresentations and False Statements to State Bar’s Grievance Committee

279. On or about December 20, 2006, Nifong received a letter of notice and substance of grievance from the Grievance Committee of the North Carolina State Bar alleging that

(a) he failed to provide the Duke I)efendants with the potentially exculpatory DNA evidence and test results,

(b) he agreed with Dr. Meehan not to provide those results, and,

(c) he falsely represented to the Court that he was unaware of these results or their omission from DSI’s report prior to receiving the Duke Defendants’ December 13 motion to compel discovery.

281. In his responses to the Grievance Committee, Nifong acknowledged that he had discussed with Dr. Meehan during meetings in April and May 2006 the results of all DSI’s testing, including the potentially exculpatory I)NA test results.

282. Nifong denied in his responses to the Grievance Committee that he had agreed with Dr. Meehan to exclude the potentially exculpatory DNA test results from DSI’s report.

283. Nifong represented in his responses to the Grievance Committee that the discussion and agreement with Dr. Meehan to limit the information in DSI’s report was based on privacy concerns of releasing the names and DNA profiles of the lacrosse players and others providing known reference specimens.

284. DSI’s report that was prepared and provided to the Duke Defendants, however, listed DNA profiles for the alleged victim, for the alleged victim’s boyfriend, and for Dave Evans and Kevin Coleman, two lacrosse players neither of whom had been indicted at the time the report was released.

285. DSI’s report that was prepared and provided to the Duke Defendants also listed the names of all 50 persons who had contributed known reference DNA specimens for testing.

286. Nifong’s representations to the Grievance Committee that his agreement with Dr. Meehan to limit the information in DSI’s report was based on privacy concerns of releasing the names and DNA profiles of individuals providing known reference specimens were knowingly false statements of material fact made in connection with a disciplinary matter.

287. Nifong further represented in his responses to the Grievance Committee that he did not realize that the potentially exculpatory DNA test results were not included in DSI’ s report when he provided it to the Duke Defendants or thereafter, until receiving their December 13 motion to compel.

288. Nifong’s representations to the Grievance Committee that he did not realize that the potentially exculpatory DNA test results were not included in DSI’s report from May 12 until he received the December 13 motion to compel discovery were knowingly false statements of material fact made in connection with a disciplinary matter.

289. Nifong also represented in his responses to the Grievance Committee that, in his statements to the Court at the beginning of the December 15 hearing referred to in paragraphs 264-265 above, he was referring not to the existence of the potentially exculpatory DNA test results but to the Duke Defendants’ purported allegation that an intentional attempt had been made to conceal such evidence from them.

290. Counsel for the Duke Defendants did not allege any intentional attempt to conceal the potentially exculpatory information from them in either their December 13 motion to compel or their remarks to the Court prior to Nifong’s comments.

291. Nifong’s above statements to the Grievance Committee concerning his representations to the Court at the December 15, 2006 hearing were knowingly false statements of material fact made in connection with a disciplinary matter.

THEREFORE, plaintiff alleges that Nifong’s foregoing actions constitute grounds for discipline pursuant to N.C. Gen. Stat. § 84-28(b)(2) in that he violated the Revised Rules of Professional Conduct as follows:

(a) By making statements to representatives of the news media commenting on matters including but not limited to those set forth in paragraphs 12-177, Nifong made extrajudicial statements he knew or reasonably should have known would be disseminated by means of public communication and would have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter in violation of Rule 3.6(a) and made extrajudicial statements that had a substantial likelihood of heightening public condemnation of the accused in violation of Rule 3.8(f) of the Revised Rules of Professional Conduct.

(b) By making statements to representatives of the news media including but not limited to those set forth in paragraphs 114-119, Nifong engaged in conduct involving dishonesty, fraud, deceit or misrepresentation in violation of Rule 8.4(c) of the Revised Rules of Professional Conduct.

(c) By not providing to the Duke Defendants prior to November 16, 2006 a complete report setting forth the results of all tests or examinations conducted by DSI, including the potentially exculpatory DNA test results and evidence, and memorializations of Dr. Meehan’s oral statements concerning the results of all examinations and tests conducted by DSI in written, recorded or any other form, despite repeated requests by the Duke Defendants and inquiries from the Court on these subjects, Nifong:

i. did not make timely disclosure to the defense of all evidence or information known to him that tended to negate the guilt of the accused in violation of fbrmer Rule 3.8(d) of the Revised Rules of Professional Conduct, as well as the United States Constitution, N.C. Gen. Stat. § 15A-282, N.C. Gen. Stat. § 15A-903(a)(1), N.C. Gen. Stat. § 15A-903(a)(2), and the Court’s June 22, 2006 order compelling discovery; and

ii. failed to make a reasonably diligent effort to comply with a legally proper discovery request in violation of former Rule 3.4(d) of the Revised Rules of Professional Conduct, as well as N.C. Gen. Stat. § 15A-903(a)(1) and N.C. Gen. Stat. § iSA-903 (a)(2),

(d) By never providing the Duke Defendants on or after November 16, 2006 and prior to his recusal on January 12, 2007 a report setting forth the results of all tests or examinations conducted by DSI, including the potentially exculpatory DNA test results and evidence, and memorializations of Dr. Meehan’s oral statements concerning the results of all examinations and tests conducted by DSI in written, recorded or any other form, Nifong:

i. did not, after a reasonably diligent inquiry, make timely disclosure to the defense of all evidence or information required to be disclosed by applicable law, rules of procedure, or court opinions, including all evidence or information known to him that tended to negate the guilt of the accused in violation of current Rule 3.8(d) of the Revised Rules of Professional Conduct, as well as the United States Constitution, N.C. Gen. Stat. § l5A-282, N.C. Gen. Stat. § 15A-903(a)(l), N.C. Gen. Stat. § l5A-903(a)(2), and the Court’s June 22, 2006 order compelling discovery; and

ii. failed to disclose evidence or information that he knew, or reasonably should have known, was subject to disclosure under applicable law, rules of procedure or evidence, or court opinions in violation of current Rule 3.4(d)(3) of the Revised Rules of Professional Conduct, as well as the United States Constitution, N.C. Gen. Stat. § l5A-282, N.C. Gen. Stat. § 15A-903(a)(l), N.C. Gen. Stat. § 15A-903(a)(2), and the Court’s June 22, 2006 order compelling discovery.

(e) By agreeing with Dr. Meehan to intentionally limit DSI’s report to disclose only the test results in which a positive result was reached between certain evidence specimens and known reference samplers which necessarily excluded reporting the potentially exculpatory DNA test results, Nifong:

i. knowingly disobeyed an obligation under the rules of a tribunal in violation of Rule 3.4(c) of the Revised Rules of Professional Conduct; and

ii. requested a person other than a client to refrain from voluntarily giving relevant information to another party in violation of Rule 3.4(1) of the Revised Rules of Professional Conduct.

(f) By repeatedly misrepresenting to the Court and to counsel for the Duke Defendants that he had provided all potentially exculpatory evidence and that the substance of all Dr. Meehan’ s oral statements to him concerning the results of all examinations and tests conducted by DSI were included in DSI’s report, Nifong made false statements of material fact or law to a tribunal in violation of Rule 3.3(a)(l), made false statements of material fact to a third person in the course of representing a client in violation of Rule 4.1, and engaged in conduct involving dishonesty, fraud, deceit or misrepresentation in violation of Rule 8.4(c) of the Revised Rules of Professional Conduct.

(g) By representing or implying to the Court that he was not aware of the potentially exculpatory DNA tests results or, alternatively, was not aware of their exclusion from DSI’s report at the beginning of the December 15, 2006 hearing, Nifong made false statements of material fact or law to a tribunal in violation of Rule 3.3(a)(1) and engaged in conduct involving dishonesty, fraud, deceit or misrepresentation in violation of Rule 8.4(c) of the Revised Rules of Professional Conduct.

(h) By misrepresenting to the Grievance Committee of the State Bar:

i. that the agreement to limit the information in DSI’s report was based on privacy concerns of releasing the names and DNA profiles of individuals providing known reference specimens,

ii. that he did not realize that the potentially exculpatory DNA test results were not included in DSI’s report when he provided it to the Duke Defendants or thereafter, and

iii. that his statements to the Court at the beginning of the December 15 hearing referred not to the existence of the potentially exculpatory DNA test results but to the Duke Defendants’ purported allegation that an intentional attempt had been made to conceal such evidence, Nifong made knowingly false statements of material fact in connection with a disciplinary matter in violation of Rule 8.1(a), and engaged in conduct involving dishonesty, fraud, deceit or misrepresentation in violation of Rule 8.4(c) of the Revised Rules of Professional Conduct.

By committing each of the violations set forth above in paragraphs (a)-(h) and by engaging in the pattern of misconduct and violations set forth in paragraphs 10-278 above, which constitutes a systematic abuse of prosecutorial discretion in the underlying criminal cases, Nifong engaged in conduct prejudicial to the administration of justice in violation of Rule 8.4(d) of the Revised Rules of Professional Conduct.”

Result: Unless Mr. Nifong presents a persuasive insanity defense, the likelihood that he will be disbarred (and therefore disqualified from serving as Durham County, North Carolina District Attorney) is … IMMENSE.

In time, the new prosecution time will dismiss the Duke case voluntarily.  After all, if they feel a temptation to try to frame the Duke Three, they will suppress it in the name of good common sense.

Michael J. Gaynor

Biography - Michael J. Gaynor

Michael J. Gaynor has been practicing law in New York since 1973. A former partner at Fulton, Duncombe & Rowe and Gaynor & Bass, he is a solo practitioner admitted to practice in New York state and federal courts and an Association of the Bar of the City of New York member.

Gaynor graduated magna cum laude, with Honors in Social Science, from Hofstra University's New College, and received his J.D. degree from St. John's Law School, where he won the American Jurisprudence Award in Evidence and served as an editor of the Law Review and the St. Thomas More Institute for Legal Research. He wrote on the Pentagon Papers case for the Review and obscenity law for The Catholic Lawyer and edited the Law Review's commentary on significant developments in New York law.

The day after graduating, Gaynor joined the Fulton firm, where he focused on litigation and corporate law. In 1997 Gaynor and Emily Bass formed Gaynor & Bass and then conducted a general legal practice, emphasizing litigation, and represented corporations, individuals and a New York City labor union. Notably, Gaynor & Bass prevailed in the Second Circuit in a seminal copyright infringement case, Tasini v. New York Times, against newspaper and magazine publishers and Lexis-Nexis. The U.S. Supreme Court affirmed, 7 to 2, holding that the copyrights of freelance writers had been infringed when their work was put online without permission or compensation.

Gaynor currently contributes regularly to www.MichNews.com, www.RenewAmerica.com, www.WebCommentary.com, www.PostChronicle.com and www.therealitycheck.org and has contributed to many other websites. He has written extensively on political and religious issues, notably the Terry Schiavo case, the Duke "no rape" case, ACORN and canon law, and appeared as a guest on television and radio. He was acknowledged in Until Proven Innocent, by Stuart Taylor and KC Johnson, and Culture of Corruption, by Michelle Malkin. He appeared on "Your World With Cavuto" to promote an eBay boycott that he initiated and "The World Over With Raymond Arroyo" (EWTN) to discuss the legal implications of the Schiavo case. On October 22, 2008, Gaynor was the first to report that The New York Times had killed an Obama/ACORN expose on which a Times reporter had been working with ACORN whistleblower Anita MonCrief.

Gaynor's email address is gaynormike@aol.com.