When we last left Michael B. Nifong, he had begged off the Duke Non-Rape, Non-Kidnapping, Non-Sexual Assault case in order to deal with his personal legal matters, those being ethics charges filed against him by the North Carolina State Bar. Because the case now is in the hands of special prosecutors appointed by North Carolina Attorney General Roy Cooper, one would think that Nifong would simply become background noise.
Think again. Nifong has managed to make himself front-and-center once again, this time by his answers to the more than 100 charges that the bar filed against him. If one might think (or even hope) that the man would be contrite when faced with massive evidence of misconduct and outright lying, then that person would be greatly disappointed. However, as F. Scott Fitzgerald once wrote, "Character is fate," and that statement seems to have been written to apply to Nifong.
In his reply to the NC Bar, Nifong basically laid out some of the following defenses:
- Regarding his failure to give attorneys the exculpatory DNA evidence that the law required him to give, Nifong’s response was to say that he really did not have to give it because he did not believe that the defense should have it;
- Regarding the conspiracy he hatched with Brian Meehan (the private DNA lab director) to withhold important results of the DNA testing, Nifong claimed to have no recollection of the April 10 meeting with Meehan and others;
- Regarding his inflammatory public statements (which earned him his first set of ethics charges from the bar), he was just repeating what the police had told him, and so it was the fault of others who simply gave him bad information;
- Regarding his testimonial order in which he sought to gain DNA samples of all the white Duke lacrosse players and declared that the DNA testing would demonstrate who was innocent and guilty, he was not bound by such statements, since someone else in his office wrote them;
- Regarding bar criticism of his statements that the players were not cooperating even though a number of players had met with police without advice or the presence of lawyers, he claims he was simply trying to move the case forward.
The arrogance of Nifong’s statements simply is breathtaking, but we have to remember that throughout this case, Nifong has behaved like a sociopath, and a sociopath generally is beyond any kind of shame. However, I think it instructive not only to examine his claims (however briefly I can do it in this article), but also to make the larger point that Michael B. Nifong is not an outlier; he is the face of government "justice" in the United States, not an exception. Like Richard Nixon, his main crime was being caught.
In debunking Nifong’s various claims, I will quote K.C. Johnson of the Durham-in-Wonderland blog, which has taken this case apart since its inception last summer. Johnson examines each of Nifong’s claims, and gives a general summary of the responses and what they really mean:
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.
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.
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 to his best recollection, he sought indictments against Reade Seligmann and Collin Finnerty without knowing the results of any of Meehan’s tests.
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."
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.
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.
Despite claims by several defense attorneys, Nifong denies ever having refused to meet with defense attorneys to consider exculpatory evidence.
Since a trial date had not yet been set, Nifong was under no obligation to turn over exculpatory evidence.
In an example of unmitigated gall, Nifong demands that the state bar pay his legal bills.
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.
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.”
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.
Whether or not Johnson’s last point actually comes true and Nifong is disbarred or even prosecuted, Nifong’s response tells us more about the state than we could possibly have realized. First, and most important, the indictments against Reade Seligmann, Collin Finnerty, and David Evans do not have Michael B. Nifong vs. these defendants, but rather The State of North Carolina vs. the defendants. Because the charges that Nifong originally filed still remain on the books, the State of North Carolina is de facto endorsing Nifong’s conduct.
To put it another way, the state "justice" system of North Carolina is endorsing sociopathic behavior by one of its own. Yes, the state bar has filed ethics charges against him, but the kidnapping and sexual assault charges against Seligmann, Finnerty, and Evans still remain, despite the fact that they are transparently false. In fact, the special prosecutors have not indicated that they are prepared to drop the charges, and the NAACP and others still are demanding that it go to trial.
As one who has written about criminal justice issues for many years, I have run into case after case in which prosecutors and the police have lied and conducted entire cases built upon webs of lies. While I have written in the past about the 10-part series, "Win at All Costs" by Bill Moushey of the Pittsburgh Post-Gazette in 1998, it is worth repeating his opening statements:
Hundreds of times during the past 10 years, federal agents and prosecutors have pursued justice by breaking the law.
They lied, hid evidence, distorted facts, engaged in cover-ups, paid for perjury and set up innocent people in a relentless effort to win indictments, guilty pleas and convictions, a two-year Post-Gazette investigation found.
Rarely were these federal officials punished for their misconduct. Rarely did they admit their conduct was wrong.
New laws and court rulings that encourage federal law enforcement officers to press the boundaries of their power while providing few safeguards against abuse fueled their actions.
Victims of this misconduct sometimes lost their jobs, assets and even families. Some remain in prison because prosecutors withheld favorable evidence or allowed fabricated testimony. Some criminals walk free as a reward for conspiring with the government in its effort to deny others their rights.
In other words, the federal agencies are full of people like Michael B. Nifong, people who are in positions of trust, yet use their positions to press false charges and obtain wrongful convictions. Rarely is anyone in the "justice" system punished for such misconduct, and there are no guarantees that Nifong will receive anything more than a slap on the wrist from the North Carolina State Bar — if he receives even that.
To put it another way, we are dealing with a system that is so full of sociopaths that the system itself becomes sociopathic in nature. In order to have even the opportunity to receive justice in this case, the families of the three Duke lacrosse players have had to shell out more than a million dollars apiece and the estimated legal costs are going to run to five million dollars or more.
That a fundamentally dishonest person like Michael B. Nifong can use the "justice" system to financially bleed other people is an outrage. Yet, as anyone who has dealt with sociopaths knows, sociopaths are incapable of shame and incapable of understanding why anyone could be outraged by their behavior.
Likewise, we hear judges, prosecutors, and those in "law enforcement" express anger that anyone ever could question the ethics, morality, and, yes, patriotism of those who hold legal authority over us. Thus, the State of North Carolina continues to hold three innocent young men in legal limbo, and people there who are in authority are shocked, SHOCKED that anyone would complain or see anything wrong in what the state has done.
To paraphrase Leon Trotsky, "Nifong is the state; the state is Nifong." Indeed, until (or if) the North Carolina authorities drop these charges and go after the real criminals in this case — Nifong, the Durham police, and others who pushed the charges — then the only proper thing for them to do is to hang pictures of Nifong on their office walls, since on this day, he is the very face of the "justice system" of The State of North Carolina.
March 2, 2007