The bar's case against Nifong

Durham-in-Wonderland continues to have the most comprehensive coverage of this case.

Uncovered are the many excuses for not providing the DNA results to the defense and how some are considered out right false statements by the bar.

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

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

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

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

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

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

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The exculpatory evidence would certainly be one reason why he was not longer pursuing a case based on DNA evidence. It clearly showed he had no case. But even if he was not pursuing a case on DNA it was still evidence of innocence that must be made available to the defense. It seems pretty clear that the reason he did not produce this obviously relevant information is that it made it more difficult for him to make his case. Prosecutors do not get to make that choice. When I prosecuted cases, I found that providing the evidence to the defense counsel usually resulted in an offer of a plea bargain, because they knew from the evidence that their client was guilty. If I had a case like this one, I would not seek an indictment to begin with.