Nifong Nifonged

Will one bad man take the fall?


David Mamet may yet pen the script for the movie version of the Duke lacross debacle, but the most relevant quote from Mike Nifong's disciplinary hearing before the North Carolina State Bar is not, "You know, we're fucked."

Displacing Nifong's lament, reportedly uttered when confronted with the accuser's conflicting stories of the supposed attack, is the reaction from Durham police Investigator Ben Himan. When told that the prosecution would forge ahead regardless, Himan testified he asked other investigators, "With What?"

Himan's question points unerringly to the fact that much more went wrong with the criminal justice system in Durham besides Mike Nifong. The scandal now broadens to the Durham Police Department, which at some level, knew that Nifong had no case.

Perversely, Nifong is counting on the perception that the police department gave him bad info and otherwise did a shoddy investigative job to help persuade the State Bar to go easy on him. But the state's legal community and especially prosecutors want to keep matters focused squarely on Nifong as an individual aberration, rather than an indicator of a broader problem with prosecutorial power.

The State Bar has tried from the outset to make Nifong's shortcomings the primary issue.

"Mr. Nifong intentionally sought out the world's attention," State Bar prosecutor Katherine Jean told the three-judge panel.

"When the world was focused squarely on North Carolina and its justice system, Mr. Nifong repeatedly and intentionally misled the media and therefore the public about a very serious case, [and] caused racial unrest in Durham," Jean continued, the latter bit a nod toward the notion that Nifong was seeking African-American votes in the upcoming Democratic primary.

This rundown of Nifong's failings and motives sounds plausible, perhaps satisfying to some. But it ignores the procedural issues and habits that are not unique to Nifong's office. None is more important than the matter of exculpatory evidence and a prosecutor's duty to disclose such evidence to the defense.

This duty is rooted in the notion that the prosecution has no client but justice itself; that it doesn't "win" a case with just any conviction, only in convicting the guilty. Incredibly, this distinction still seems to escape Nifong and his legal team.

Nifong's lawyers referred to serial liar and rape accuser Crystal Gail Magnum repeatedly as "the victim" in Wednesday's proceedings, clearly suggesting that Nifong sees his role as victim's advocate first and truth-seeking officer of the court second. Sharing exculpatory evidence with the defense not only isn't a priority within that framework, it's downright hostile to it.

The dirty secret: Mike Nifong isn't alone among prosecutors in this regard. In fact, the North Carolina Association of District Attorneys was caught red-handed trying to roll back the very discovery reforms that allowed the lacrosse players' lawyers to uncover Nifong's missteps in the first place. This spring state DAs ghost-wrote legislation for the North Carolina General Assembly which critics quickly dubbed the Nifong Protection Act.

The legislation tried to undo North Carolina's open file discovery law just passed in 2004, claim it's too great a burden to document and comply with all the possible sources of exculpatory evidence.

This argument does not pass the sniff test of one of lacrosse players' defense attorneys.

"For the life of me I cannot understand in view of what has played itself out in Durham why the district attorneys believe this is a good time to actually cut back on the open file discovery provisions. This bill isn't written for DAs who follow the rules. The bill is written for DAs who aren't following the rules," Jim Cooney told Creative Loafing in April.

The desire to ease discovery demands helps explain the interest of some within the State Bar in making Nifong the alpha and omega of the case. Nifong, his investigators, and a still undetermined number of Durham police officers all conspired to keep the case going despite a glaring lack of evidence. Was it a criminal conspiracy? That remains to be seen. The trial judge has yet to be heard from about what went on in his courtroom last year.

However, we do know that it is no accident that this conspiracy centered on DNA evidence—or the lack thereof. This is evidence that the prosecution could reasonably think of as having "owned": the rape kit collection, the state lab, parsing the results. The defense team—any defense team—is generally not around for this process. Yet the defense is entitled to the results all the same. Perhaps Nifong considered that unfair, or had skirted the law so often in this area that the requirement to share evidence no longer mattered to him. He surely fell short of "seeking the truth," in any event.

Brian Meehan, director of DNA Security, the private lab Nifong went to for the unheard-of in North Carolina step of getting more rigorous DNA testing in a rape case, told the panel that Nifong never asked for a full report of the DNA results. Those results, recall, showed DNA from multiple men, none of whom were Duke lacrosse players. In effect, Nifong was trying to play don't ask, don't tell with evidence.

DNA evidence and other forms of modern forensic evidence do not permit that kind of prosecutorial discretion. Such evidence, alone, may not decide a case, but it does set the ground rules. Some things are ruled out, others in. Thus a carefully constructed case involving compelling victims, believable witnesses, reasonable suspects, perhaps even a partial confession can all come undone if the DNA comes back "wrong."

And that is ultimately the most chilling thing about the matter of Mike Nifong and the Duke rape case. Had Nifong had any of those other elements of a case, would the exculpatory DNA been enough to stop him? To force his recusal and ultimately bring about a new state investigation which cleared three innocent men?

Answers to those questions reverberate far beyond the matter of whether Mike Nifong ends up selling hot tubs instead of practicing law, or winds up sharing a cell with a previous victim of his brand of justice.

Reason contributor Jeff Taylor writes from Charlotte, North Carolina.

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