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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 20, 2007
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Topic category:  Other/General

Duke Case: NC State Bar Brief Gives Nifong Grief, Not Relief

Good riddance.

The North Carolina State Bar was slow to begin, but it is apparent from its amended ethics complaint and memorandum of law in opposition that Durham County, North Carolina District Attorney Michael B. Nifong will be called to account for his grievous ethical “sin.”

On February 28, 2007, Mr. Nifong filed a responsive pleading that included a motion to dismiss parts of the State Bar’s amended complaint, claiming that the State Bar cannot establish as a matter of law that he violated (1) the United States Constitution; (2) N.C.G.S. § l5A-282; (3) N.C.G.S. §§ 15A-903(a)(1) & (a)(2); or (4) the Durham County Superior Court’s June 22, 2006 and September 22, 2006 Orders.

In the course of the Duke case, Rules 3.4(d) and 3.8(d) of the North Rules of Professional Conduct were revised. On November 16, 2006, the current versions of Rules 3.4(d) and 3.8(d) became effective.

Mr. Nifong should have skipped the motion to dismiss.

On a motion to dismiss, the factual allegations of the challenged pleading are taken to be true.

The question for the court is “whether, as a matter of law, the allegations of the complaint, treated as true, are sufficient to state a claim upon which relief may be granted under some legal theory.” Meyer v. Walls, 347 N.C. 97, 111, 489 S.E.2d 880, 888 (1997).

In order to win dismissal, Mr. Nifong must establish that “one of the following three conditions is satisfied: (1) the complaint on its face reveals that no law supports the plaintiffs claim; (2) the complaint on its face reveals the absence of facts sufficient to make a good claim; or (3) the complaint discloses some fact that necessarily defeats the plaintiffs claim.” Wood v. Guilford Cty., 355 N.C. 161, 166, 558 S.E.2d 490, 494 (2002).

A motion to dismiss should not be granted “unless it appears to a certainty that plaintiff is entitled to no relief under any state of facts which could be proved in support of the claim.” Sutton, 277 N.C. at 103, 176 S.E.2d at 166.

Having set forth the applicable law, the State Bar chided Mr. Nifong for urging the Disciplinary Hearing Commission “to undertake statutory construction, interpretation of case law, and semantic hair-splitting,’ because: “These are not appropriate tasks for the tribunal in ruling on a Rule l2(b)(6) motion. By definition, if the applicable law is subject to various interpretations, any one of which provides a legal basis for the plaintiff’s claim, dismissal under 12(b)(6) is inappropriate. See, e.g., Meyer, 347 N.C. at 111, 489 S.E.2d at 888 (noting that dismissal under 12(b)(6) is inappropriate if ‘relief may be granted under some legal theory’) (emphasis added). The allegations of Plaintiff’s Amended Complaint, treated as true and if proven, state a violation of the Rules of Professional Conduct. Nifong cannot demonstrate that the face of the Amended Complaint ‘discloses an insurmountable bar to recovery.’ Because Nifong has failed to sustain his burden, the motion to dismiss should be denied.”

The State Bar explained that Mr. Nifong’s motion to dismiss is not only deficient, but limited to challenging “the claims set forth in paragraphs (c) and (d) of the ‘Therefore’ clause on grounds that the State Bar allegedly cannot establish that Nifong violated the United States Constitution, various sections of the North Carolina General Statutes, or two Durham County Superior Court Orders.”

The State Bar’s powerful point: Mr. Nifong did not seek to dismiss the alleged violations of the Rules of Professional Conduct. And the Rules do not depend upon violations of the constitutions, statutes or court orders!

State Bar: “A violation of Rule 3.4 occurs where a lawyer fails ‘to make a reasonably diligent effort to comply with a legally proper discovery request by an opposing party.’ The former version of Rule 3.8, which was in effect until November 16, 2006, required a prosecutor to ‘make timely disclosure to the defense of all evidence or information known to the prosecutor that tends to negate the guilt of the accused.’ 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 order to prove a violation of Rule 3.4 or the former version of Rule 3.8, it is not necessary to show that the lawyer violated any statute, constitutional provision, or court order. Thus, the viability of the claimed Rule violations in paragraph (c) and in paragraph (d)(ii) are wholly independent of Plaintiff’s additional allegations that Nifong’s conduct also violated the U.S. Constitution, the General Statutes, and the Court Orders.”

Stated otherwise, and simply: the Rules require MORE from attorneys.

Paragraph (d)(i) of the “Therefore” clause of the State Bar’s Amended Complaint against Mr. Nifong alleged that Mr. Nifong violated the current version of Rule 3.8(d), which requires a prosecutor, “after reasonably diligent inquiry, [to] 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 the prosecutor that tends to negate the guilt of the accused.”

State Bar: “[T]he allegations in the Amended Complaint, taken as true, demonstrate that Nifong was required, under either ‘applicable law, rules of procedure, or court opinions’ to provide a complete report to the Duke Defendants of all tests performed by DSI and a memorialization of Dr. Meehan’s oral statements. Accordingly,…Defendant’s motion to dismiss should also be denied as to Paragraph (d)(i) of the ‘Therefore’ clause of the Amended Complaint.”

Mr. Nifong’s motion to dismiss opened the door and the State Bar took the opportunity to explain that Mr. Nifong had “mischaracterize[d] the factual allegations of the Amended Complaint” and it had “alleged sufficient facts to show Nifong violated the United States Constitution.”

State Bar: “In the paragraphs of the Amended Complaint cited by Nifong in support of [his] argument, the State Bar alleges that Nifong provided the Duke Defendants with ‘1,844 pages of underlying documents and material’ (paragraph 254), ‘documentation’ (paragraph 259), and ‘results and evidence’ which had been expressly excluded from the DSI report provided by Nifong (paragraph 261). The 1,844 pages of raw data provided to the Duke Defendants by Nifong were not a ‘report’ of the results of all tests and examinations performed by DSI; they were the results themselves, without the benefit of summary, explanation or interpretation by the State’s expert. As such, the allegations in the Amended Complaint do not, as Nifong contends, establish that he provided the Duke Defendants with a ‘report’ of DSI’s tests and examinations.”

"When I use a word," Humpty Dumpty said, in a rather scornful tone, "it means just what I choose it to mean — neither more nor less."

"The question is," said Alice, "whether you can make words mean so many different things."

"The question is," said Humpty Dumpty, "which is to be master — that's all."

The State Bar told Mr. Nifong that he is not “master” and the word “report” should not be twisted to suit his purposes.

Mr. Nifong’s main argument was that the absence of a tiral or a trial date excused him.

The State Bar shredded the silly argument.

State Bar:  “…Nifong argues that because the Amended Complaint ‘fails to allege that a trial was held or that a trial date had been scheduled,’ the State Bar ‘cannot establish that the “Duke lacrosse defendants’” due process rights to a fair trial were affected.’ Nifong cites no legal authority for this proposed bright-line rule. According to Nifong, because his ongoing refusal to disclose exculpatory evidence to the Duke Defendants occurred before a trial date was set, the defendants’ right to a fair trial was not compromised and thus, Nifong did not violate their constitutional rights. 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.”

EXACTLY! (Moreover, the Constitution protects much more than a defendant’s right to a fair trial.)

State Bar:

 “A careful reading of United States v. Argurs does not support Nifong’s argument that he didn’t violate the Duke Defendants’ constitutional rights. The portion of the Argurs decision quoted by Nifong in his motion is inapposite to Nifong’s conduct as alleged in Plaintiff’s Amended Complaint. In Argurs, 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.’ 427 U.S. at 106. Where the defendant doesn’t request discovery or requests unspecified exculpatory information, the Court held that ‘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.’ 427 U.S. at 107.

“In contrast, where a defendant’s request ‘[gives] the prosecutor notice of exactly what the defense desire[s], and

the subject matter of [the defendant’s] request is material, or indeed if a substantial basis for claiming materiality exists, it is reasonable to require the prosecutor to respond either by furnishing the information or by submitting the problem to the trial judge. When the prosecutor receives a specific and relevant request, the failure to make any response is seldom, if ever, excusable.
id. The Duke Defendants made repeated, specific requests to Nifong for material potentially exculpatory information, so under the Argurs analysis, his conduct falls into the ‘seldom, if ever, excusable’ category. Accordingly, the facts as alleged in Plaintiff’s Amended Complaint are sufficient to support the allegation that Nifong violated the due process clause of the U.S. Constitution.”

The State Bar also demonstrated that it had alleged sufficient facts to show that Mr. Nifong has violated N.C.G.S. § l5A-903(a)(1) and (a)(2) by not providing a memorialization of the substance of his conversations with Dr. Brian Meehan of DNA Security, and that Mr. Nifong providing the defense with “an initial report of Dr. Meehan’s examination of certain DNA evidence” and later providing them with “the underlying data contained in the DSI file” did not suffice under N.C.G.S. § l5A-903(a)(2).

State Bar:

“Dr. Meehan was a witness for the State, and during his meetings with Nifong in April and May 2006, he made various oral statements regarding the results of DSI’s DNA testing on evidence in the criminal case against the Duke Defendants. Pursuant to § 15A-903(a), Nifong was required to provide to the defense ‘witness statements . . . results of tests and examinations, or any other matter or evidence obtained during the investigation.’ ‘Oral statements’ were required to be ‘in written or recorded form.’ Plaintiff’s Amended Complaint alleges that Nifong failed to provide the Duke Defendants, at any time, with a memorialization of Dr. Meehan’s oral statements during the April and May 2006 meetings with Nifong. Unlike subsection (a)(2), which indicates that the State must ‘furnish the materials required by this subsection within a reasonable time prior to trial, as specified by the court,’ subsection (a)(1) does not link the time at which the State must provide discovery materials to the time of trial. Accordingly, the State Bar’s allegation that Nifong never provided a memorialization of Dr. Meehan’s statements to the Duke Defendants is sufficient to support a violation of Rule 3.8(d) regardless of whether or not a trial date had been scheduled. In light of the plain language of § 15A-903(a)(1), this allegation is sufficient to state a claim upon which relief can be granted.”

Moreover, what Mr. Nifong did not provide was patently insufficient: “The ten-page DSI report provided by Nifong to the Duke Defendants in May 2006 does not meet the requirements of subsection (a)(2) because it reported only on ‘certain’ DNA test results, not ‘any’ tests conducted by the expert.”

The State Bar exposed Mr. Nifong chicanery: “Under § 15A-903(a)(2), 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. Again, the 1,844 pages of raw data provided to the Duke Defendants by Nifong, more than five months after he provided the 10-page DSI report, were not a ‘report’ of the results of any examinations or tests performed by DSI; they were the results themselves, without the benefit of summary, explanation or interpretation by the State’s expert. Consequently, the State Bar’s allegation that Nifong eventually provided the Duke Defendants with ‘the underlying data contained in the DSI file’ in no way conflicts with the State Bar’s claim that Nifong violated subsection 15A-903(a)(2).”

The State Bar also supported its allegation that Mr. Nifong had violated court orders issued on June 22, 2006 and September 22, 2006.

First, the State Bar exposed more Nifong chicanery: “it is worth noting 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.”

Then, the State Bar reviewed the record:

“In May 2006, Nifong filed with the Court written responses to the Duke Defendants’ discovery requests, in which he stated: ‘The State is not aware of any additional material or information which may be exculpatory in nature with respect to the Defendant{s].’ At a May 18, 2006 hearing, the Court asked Nifong if he had provided the Duke Defendants all discovery materials. In response to the Court’s inquiry, Nifong stated: ‘I’ve turned over everything I have.’ On June 22, 2006, the Court held a hearing on the Duke Defendants’ request for various material including a report or written statement of the meetings between Nifong and Dr. Meehan to discuss the DNA test results. In response to this request and to the Court’s inquiry, Nifong represented that no information beyond what was in the ten-page DSI report was discussed at the meeting with Dr. Meehan. Nifong represented to the Court: ‘That’s pretty much correct, your Honor. We received the reports, which [opposing counsel] has received, and we talked about how we would likely use that, and that’s what we did.’

“Based on Nifong’s misrepresentations at the June 22 hearing, the Court entered an Order directing Nifong to provide the Duke Defendants with all discovery material covered by N.C.G.S. § 15A-903(a). The language of the Court’s June 22 Order was identical to that of §§ l5A-903(a)(1) and (a)(2). Because the June 22, 2006 Order required disclosure of all material covered under §§ 15A-903(a)(l) & (a)(2), the allegations of Plaintiff’s Amended Complaint are sufficient to show that Nifong violated the June 22 Order for the same reasons set forth in the discussion of § 15A-903 above. The June 22 Court Order did not specifically require Nifong to provide a memorialization of Dr. Meehan’s oral statements because Nifong had repeatedly misrepresented to the Court that no additional discoverable material had been discussed, and that the requested memorialization would be redundant with the DSI report already provided to the defense.

“On August 31, 2006, the Duke Defendants collectively filed their Joint Omnibus Motion to Compel discovery which was addressed by the Court at a hearing on September 22, 2006. In response to a question from the Court at the hearing, Nifong represented that the ten-page DSI report encompassed all tests performed by DSI and everything discussed at his meetings with Dr. Meehan in April and May 2006. Immediately thereafter, Nifong and the Court had the following exchange regarding the Duke Defendants’ request for memorializations of Dr. Meehan’s oral statements:

Court: ‘So you represent there are no other statements from Dr. Meehan?’

Nifong:   ‘No other statements. No other statements made to me.’

“Based on Nifong’s misrepresentation that ‘Dr. Meehan said nothing during thosemeetings beyond what was encompassed in the final report of [DSI] dated May 12, 2006,’ the Court found that there were no additional discoverable statements by Dr.Meehan for the State to produce. Based on his continuing misrepresentations, the Court did not specifically order Nifong to provide the defense with memorializations of Dr.Meehan’s oral statements. In his motion, Nifong now seeks to have a claim that he violated the Rules of Professional Conduct dismissed on the grounds that his successful deception of the Court resulted in a Court Order which did not specifically require him to provide memorializations of Dr. Meehan’ s statements.

“The Court’s September 22, 2006 Order granted the Duke Defendants’ request for all ‘underlying data and notes regarding all physical evidence[,] testing[,] and analysis done by [DSI].’ See id., ¶ 11. The Court’s Order required Nifong to provide ‘the complete files of all activities conducted by all persons at [DSI] in relation to any evidence submitted to [DSI[] for any purpose’ in the case to the Duke Defendants. Given the comprehensive nature of the production ordered by the Court, it is unlikely that the Court would have failed to require Nifong to produce memorializations of Dr. Meehan’s oral statements absent Nifong’s express misrepresentations on that topic.”

In essence, the State Bar concedes that the orders were not literally violated, but insists that Mr. Nifong should be estopped to claim that, since he is responsible for the deficiencies in the orders.

Under the circumstances, the State Bar has a duty to show that the orders would have been encompassed his misconduct if he had not deceived the court, but it shoould be given the opportunity to do so.

Finally, the State Bar showed that it alleged sufficient facts to show that Nifong violated N.C.G.S. § 15A-282.

State Bar:

 “The allegations in the Amended Complaint involve the content and timing of information provided by Nifong to the subjects of the NTO, not the ‘format’ in which the disclosures were made. Section 15A-282 is unambiguous: Anyone subject to an NTO must be given any report of test results as soon as such a report is available. DSI’s testing was complete, and thus a report of all the results—including the potentially exculpatory DNA test results—was available on May 12, 2006. The fact that Nifong only directed Dr. Meehan to prepare a partial report does not mean that a comprehensive report was unavailable: Such an assertion is tantamount to declaring that suppressed evidence simply does not exist.”


Once again, Mr. Nifong is trying to use his conduct to excuse his misconduct.

Lest the Commission succumb to Mr. Nifong’s trickery, the State Bar made its own technical argument: “Even if one were willing to assume for the sake of argument that the 1,844 pages of underlying data provided to the Duke Defendants on October 27 was a ‘report,’ the information contained therein had been available since May 12, and was not given to the Duke Defendants until more than five months later pursuant to a motion to compel over an objection. The State Bar has alleged that Nifong never provided the subjects of the NTO with a full report of test results as required by the statute. Whether or not one is willing to characterize the 1,844 pages of data as a ‘report,’ which it is not, the allegations of the Amended Complaint show that Nifong did not provide the subjects of the NTO with a report of all tests results ‘as soon as the reports [we]re available’ as required by N.C.G.S. § I 5A-282. He also never provided this data to the remaining 43 players subject to the NTO.”

The State Bar knows that Mr. Nifong has to go.

After reading its brief, Mr. Nifong too will know.

Anyone still aboard the sinking ship Nifong should read the compelling conclusion to the State Bar’s opposing brief:

“Defendant’s motion seeks to have the DHC 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.

“Defendant’s conduct, as set forth in the Amended Complaint, violates Rule 3.4 and the previous version of Rule 3.8, and certainly states a violation under the current Rule 3.8 and the State’s open file discovery statutes. For the foregoing reasons, Defendant’s motion to dismiss should be denied.”

First, dismiss.

Then, disbar. 

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,,, and 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

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