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"And ye shall know the truth, and the truth shall make you free." - John 8:32
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Author:  Michael J. Gaynor
Bio: Michael J. Gaynor
Date:  March 2, 2007
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Topic category:  Other/General

Duke Case: The Amazing Defense of the Reprehensible and Indefensible Nifong

The Nazis lost World War II because Hitler was betrayed by his people.  The war was not his fault. Losing the war was not his fault. He himself said so in his political testament, written in a bunker in Berlin in 1945, when the fall of the Third Reich was imminent and even he recognized it.

Having been charged with unethically promoting a Big Lie (that the Duke Three had committed first-degree felonies instead of had been falsely accused of committing them), Durham County, North Carolina District Attorney Michael B. Nifong blamed others and absolved himself in the pleading submitted on his behalf to the North Carolina State Bar amended complaint against him dated February 28, 2007.

Are you surprised?

Dr. Brian Meehan of DNA Security, the private laboratory, and Sergeant Gottlieb and Investigators Himan and Soucie of the Durham Police Department either misadvised Mr. Nifong about the facts or misrecorded their conversations with him.

Notwithstanding police notes to the contrary, Mr. Nifong never directed the police investigation.  (Presumably, he also would say that he never directed former Durham County District Attorney Ashley Cannon to lie to the court in the prosecution of the (black) cab driver who confirmed Reade Seligmann’s alibi or Durham  police to make an arrest in the quadruple murder case so that he could redirect the attention of the people of Durham County from the “60 Minutes” Dike case expose to “progress” in that case.)

Mr. Nifong was selectively focused during his meeting last April 10 with Dr. Meehan, Sergeant Gottlieb and Investigator Himan (much like the Duke case grand jurors were selectively presented evidence in order to obtain indictments of Reade Seligmann, Collin Finnerty and David Evans, the Duke Three).

Mr. Nifong made many public statements with respect to the Duke case, but he did not violate ethics rules because (1) the 46 white members of the 2005-2006 Duke University Men’s Lacrosse Team were merely suspected when some of those statements were made, (2) comment (7) of Rule 3.6 permits “extrajudicial statements that might otherwise raise a question under this Rule…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” (presumably the people of Durham County or perhaps all North Carolina) and (3) he was well meaning.

Mr. Nifong may pick and chose among the acts of his subordinates and he choooses not to be bound by that March 23 non-testimonial order to the effect that  DNA would exonerate the innocent since he did not personally compose it. 

“In the event the panel finds that [Mr. Nifong] violated any Rules of Professional Conduct…the panel [should] find that [his violation of any Rule of Professional Conduct was not intentional, nor the result of a dishonest or selfish motive, but rather that any discipline entered be based upon a finding that [his] violation of any Rule of Professional Conduct was the result of the mistaken belief that any of the action taken by [him] were not prohibited by said rules”.

The defense attorneys lie!  Mr. Nifong never refused to meet with defense attorneys to consider exculpatory evidence, he insisted.  It must be Kirk Osborn, Reade Seligmann’s bold attorney, who is twisted.

No trial date had (or has) been set in the Duke case, so it was fine for Mr. Nifong to conceal exculpatory evidence.

Judges excused Mr. Nifong from turning over to the defense notes of his conversations with Dr. Meehan that the defense had sought.  It doesn’t matter that the judges denied the requests because Mr. Nifong misled them.

North Carolina district attorneys are supposed to be fair and impartial ministers of justice, but if they are oblivious to evidence of innocence in their zeal to prove guilt, it doesn’t rise to the level of misconduct.

Forget Mr. Nifong’s first three explanations as to why he had not disclosed the exculpatory DNA results to the defense (just like you should forget all of false accuser Crystal Gail Mangum’s prior inconsistent statements)  Forget that Mr. Nifong first claimed in court that he had not heard of the issue until last December 13, when the defense filed a motion on the question.  Forget that he next explained in a press conference last December 15 that he had not turned the information over for privacy reasons. Forget that he later told The New York Times that he had not turned the information over because of his excessive workload.  Those explanations no longer are operative.  Mr. Nifong did not turn it over becasuse he was not required to do so and, if he was, he just made a good faith mistake.

Give me a break!

Brooklyn College History Professor Robert K.C. Johnson is right about Durham, North Carolina being a Wonderland.

Mr. Nifong’s pleading is identified as a motion to dismiss and answer.

Fittingly, that is misleading: the motion is to dismiss but part of the charges.

Mr. Nifong contended  that the amended state bar complaint fails to state a claim upon which relief can be granted.  But that contention applies only to “the portions of [it] as more specifically outlined in paragraphs (c) and (d) of the “Therefore” clause….”

The motion is the most amusing part of Mr. Nifong’s pleading, because Mr. Nifong contends that it is the North Carolina State Bar that was careless.

Mr. Nifong: “The Amended Complaint fails to allege as of October 27, 2006, or as of the date of the filing of the Amended Complaint, that a trial was held or that a trial date had been scheduled. Consequently, plaintiff cannot establish that the ‘Duke lacrosse defendants’ due process rights to a fair trial were affected, and therefore plaintiff cannot establish as a matter of law that the ‘Duke lacrosse defendants’ constitutional rights were violated. ‘For unless the omission deprived the defendant of a fair trial, there was no constitutional violation requiring that the verdict be set aside; and absent a constitutional violation, there was no breach of the prosecutor’s constitutional duty to disclose. . . But to reiterate a critical point, the prosecutor will not have violated his constitutional duty of disclosure unless his omission is of sufficient significance to result in the denial of the defendant’s right to a fair trial.’ See: United States v. Aqurs, 427 U.S. 97, 108, 96 S.Ct. 2392; 2399, 49 L.Ed 2d 342, 352 (1976). (See also: State v. Elliott, 360 N.C. 400, 415, 628 S.E.2d 735 (2006); State v. Spivey, 102 N.C.App. 640, 645, 404 S.E.2d 23, (1991))”.

Mr. Nifong’s position seems to be that he should benefit from defense diligence, that defense diligence should protect him from a charge of concealing exculpatory evidence (even though Mr. Nifong and Dr. Meehan opposed the defense’s request for the September 22, 2006 Order), because the trial date had not yet been set.

“In short, the allegations contained in plaintiff’s Amended Complaint reveal that the State had been provided an initial report of Dr. Meehan’s examination of certain DNA evidence. Thereafter, consistent with N.C.G.S. § 15A-903(a)(2) and the June 22, 2006 Order of the Judge Ronald L. Stephens, and pursuant to the terms of the Order of September 22, 2006, the State provided the underlying data contained in the DSI file including reports of the results of all tests and examinations performed by DSI. From this information, the Duke defendants determined that these reports of the results of tests and examinations revealed evidence that had potential exculpatory value. Counsel for the Duke defendants thereafter were allowed to examine Dr. Meehan about the results of the tests performed by DSI. Thus, the allegations of the Amended Complaint establish that at a reasonable time prior to trial, the Duke defendants knew of the existence of the ‘potentially exculpatory evidence’.

“’The purpose of the discovery procedure is to protect the defendant from unfair surprise. State v. Alston, 307 N.C. 321, 331, 298 S.E.2d 31 (1983). The allegations of the plaintiff’s Amended Complaint conclusively establish that Nifong fully complied with the N.C.G.S. § 1 5A-903(a)(2) and the June 22, 2006 Order, and that the purpose of the discovery statutory procedures was accomplished. The discovery information was provided before a trial date had been set in accordance with the September 22, 2006 Order of Judge W. Osmond Smith, Ill.”

Even if the disclosure of the concealment of exculpatory evidence before the setting of a trial date saved Mr. Nifong from violating the United States Constitution and his own behavior does not estop him, there was a state statutory duty to disclose and there were court orders directing disclosure.  The same conduct that might not have resulted in a constitutional violation may still be sanctionable under ethics rules.  Regardless of the absence of a trial date, Mr. Nifong could not make misrepresentations to the court and to the defense with impunity, or conspire to conceal exculpatory evidence.

A section of Mr. Nifong’s pleading is captioned “Improper Pretrial Public Statements and Misrepresentations (in bold and underscored).  NOT “Alleged Improper Pretrial Public Statements and Misrepresentations”.  Rightfully so!

Although Mr. Nifong claimed to be well-intentioned, the scope of his admissions is enormous.

Mr. Nifong: “Defendant made the statements outlined in paragraphs 12 through 175 of the Amended Complaint at a time when there was an ongoing investigation relating to the facts contained in the Affidavit attached to the Application for Nontestimonial Identification Order….The statements made between March 27, 2006 and April 3, 2006, were made at a time when no individual suspects had been identified and were an effort by the defendant 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. 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. Defendant denies that any statements he made as further alleged in plaintiff’s Amended Complaint were made with the intent of materially prejudicing an adjudicative proceeding which has resulted from said investigation. Defendant further denies that when he made the statements as alleged in the Amended Complaint, that he intended to heighten the public condemnation of an accused or that his actions were intended to heighten the public condemnation of an accused….”

Big problem: Mr. Nifong did not even try to explain why he supposedly failed to “fully understand the extent of the national media interest in this particular investigation and… comprehend the effect said statements may have on any matters.”  A career prosecutor does not have an excuse for no realizing the readily foreseeable consequences of his or her public statements in a case involving allegations of sexual violence and racial and class differences.

As for why it was supposedly appropriate for Mr. Nifong to suggest condom use when Ms. Mangum had claimed there was none, Mr. Nifong simply claimed his unspecified “experience” allowed it!

Mr. Nifong: “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 contained in paragraph 123 that his comments were misleading and furthermore, defendant alleges that his comments are consistent with the opinion of the SANE nurse who examined the victim on the night of the alleged attack….”

The next section of Mr. Nifong’s pleading is captioned “Withholding or Failing to Provide Potentially Exculpatory DNA evidence” (in bold but not underscored), NOT “Alleged Withholding or Failing to Provide Potentially Exculpatory DNA evidence”.  Again, rightfully sd.

It was “admitted that on March 24, 2006, Nifong assumed primary responsibility for prosecuting any criminal charges resulting from the investigation of the ‘Duke lacrosse case’.  Defendant further admits that he advised the Durham Police Department that any request for assistance from the office of the District Attorney be directed to him and that he be kept advised of the progress of the investigation being performed under the supervision of the Durham Police Department.”

In an astonishing example of legal draftsmanship that tries to deal with one problem by creating another, Mr. Nifong essentially conceded that he was only interested in inculpatory evidence: “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. Furthermore, at this time the defendant knew that he would be required to produce the underlying data from any forensic test performed by DSI in the course of discovery. Any remaining allegations contained in paragraph 212 of plaintiffs Amended Complaint are denied.”

So much for that duty to be a fair and impartial minister of justice!

The following section of Mr. Nifong’s pleading is captioned “Misrepresentations and False Statements to Court and Opposing Counsel” (in bold, but not underscored), NOT “Alleged Misrepresentations and False Statements to Court and Opposing Counsel”.  Right again!

It included the willful blindness defense: “At the time [Mr. Nifongt made the representation referenced in paragraph 230, he had not analyzed whether trace DNA from individuals not members of the Duke lacrosse team which was found on certain items tested would be material evidence which would effect the outcome of any subsequent trial and as such, as of the date of said representation, he had not considered whether this evidence was possibly exculpatory evidence.”

In other words, “I knew enough to get indictments, but I didn’t know enough to know what might be exculpatory, but I didn’t tell the court or opposing counsel because they didn’t need to know how ignorant I really was.”

Having shamelessly pleaded that he knew too little to be culpable, Mr. Nifong also shamelessly pleaded that he read things into a defense motion that were not there and that too excused him!

Mr. Nifong: “[Mr. Nifong admits that although the [defense] motion did not specifically state that there had been an attempt or agreement to conceal potentially exculpatory DNA evidence, [Mr. Nifong’s reading of said motion which asserted the failure of Dr. Meehan’s initial report to include certain information, in light of the fact that the Duke lacrosse defendants had been provided with the underlying reports and results of all tests and examinations performed by DSI, was that the defendants were asserting some improper action on the part of Dr. Meehan and/or the State. As such, [Mr. Nifong] denies any inference raised in paragraph 262 that said motion was not alleging or asserting some active concealment by Dr. Meehan and/or the State.”

The final section of Mr. Nifong’s pleading is captained “Misrepresentation and False Statements to State Bar’s Grievance Committee” (in bold, but not underscored).  NOT “Alleged Misrepresentation and False Statements to State Bar’s Grievance Committee”. Appropriate, if inadvertent.

It appears that Mr. Nifong still is on course to be disbarred.  Nothing in his pleading suggests a lesser sanction would be appropriate.

Michael J. Gaynor

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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.


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