Skip to comments.Nifong's lawyers say DNA evidence shared
Posted on 03/20/2007 8:20:59 AM PDT by freespirited
The former prosecutor in the Duke lacrosse sexual assault case didn't violate the constitutional rights of the three charged players, his attorneys said in a renewed effort to have some of the ethics charges against him dismissed.
In papers filed last week, attorneys for District Attorney Mike Nifong added to their argument that the players' attorneys received a report and its underlying data on DNA testing well before any trial.
"That Nifong disclosed both the report and the underlying data later than the Duke defendants would have preferred does not turn Nifong's disclosure, or failure to make what the defendants would consider timely disclosure, into a constitutional violation," they wrote.
The N.C. State Bar has accused Nifong of breaking several rules of professional conduct. Attorneys for Nifong have argued their client did not intentionally withhold DNA evidence favorable to the players.
The bar's charge that he withheld evidence from the defense is the most serious faced by the veteran prosecutor, who could be disbarred if convicted.
In a response also filed last week, the bar's attorneys said Nifong was asking the disciplinary hearing commission "to undertake statutory construction, interpretation of case law and semantic hair-splitting."
Nifong turned the case over to state prosecutors in January after the bar charged him with ethics violations. Rape charges have been dropped, but the three players still face sexual offense and kidnapping charges from the March 2006 party.
Now he claims he did provide the data. Too bad he can't plead insanity to keep his bar card.
Even if he did, he only provided raw data and tried to bury it under thousands of other papers.
This guy should be brought up on a charge of First Degree Felony Stupid.
He did, after he got caught. That doesen't change the fact that he entered into a conspiracy to hide the evidence from the defense.
The state of North Carolina has a vested interest in still trying to get a conviction. Someone has said, "Some cases are so important that even innocence isn't allowed to be a defense." And this appears to be one of those cases.
Petition for Justice in the Duke Lacrosse case :
Help keep the public spotlight focused on what they are doing in Durham.
Geez, Nifong is another Bubba who doesn't realize his 15 is up.
Nifong put the Gov. on the hot seat he's toast.
The fact that Nifong didn't just drop the case when the DNA shows that no crime occurred is enough reason to disbar him.
From http://durhamwonderland.blogspot.com/, the thinking person's blog on the Duke "rape" case:
Monday, March 19, 2007
The Bar's Devastating Response to Nifong
The N&O has posted the Bars response to Mike Nifongs memorandum of law to dismiss some of the ethics complaint against him. It astutely describes the Nifong memorandum as asking the Bar to undertake statutory construction, interpretation of case law, and semantic hair-splitting.
A basic summary.
1.) Nifongs defense appears geared more toward possible criminal allegations than to answering the Bars complaint that he violated the Rules of Professional Conduct.
In its response, the Bar notes that Rule 3.8 requires a prosecutor to disclose all evidence in a timely fashion, and that a prosecutors 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 other words, Nifongs memorandum is attempting to prove that the DA didnt violate the Constitution when he entered into an agreement with Dr. Meehan to withhold exculpatory evidence. Yet he doesnt even try to address the question of whether his behavior violated the Bars rules.
Indeed, the Bar contends that Nifongs conduct regarding the DNA evidence (along with the arguments presented in his defense) violate the plain language of North Carolina law. Under the statute, the Bars response observes, the issue is not whether a defendant is able to surmisefrom a massive amount of raw datawhether the expert uncovered potentially exculpatory evidence, but whether a report of the results was furnished to the defendant by the State.
2.) A report is a report.
The Bars response dismissed Nifongs absurd argument that in handing overmonths after the fact and under court orderthe underlying data from Dr. Meehans DNA tests, he was complying with a statutory requirement to hand over a report on all tests performed by expert witnesses of the state.
3.) Nifongs no-trial rule makes no sense.
The response also dismisses Nifongs proposed bright-line rule that because no trial date had been set, he didnt have to turn over the exculpatory evidence. As the Bar notes, 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. Nothing in the Rules of Professional Conduct suggest that the rules kick in only once a judge sets a trial date.
4.) Nifong fails his own constitutional test.
In a devastating passage, the Bar notes that Nifong misread a Supreme Court decisionUnited States v. Argursthat figured prominently in his memorandum. In Argurs, the Bar noted, 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, and that when the prosecutor receives a specific and relevant request, the failure to make any response is seldom, if ever, excusable. In this case, of course, the defendants repeatedly requested the DNA material, Nifong repeatedly denied that any more test results existed. Nifong, therefore, violated with Argurs testthe very test his own memorandum had proposedand with it, violated the Constitution.
5.) Lying to the court ought not be rewarded.
The Bar takes strong issue with Nifongs argument that because both Judge Stephens and Judge Smith didnt order him to memorialize his conversations with Dr. Meehan, neither he nor any other law enforcement official had to do so. It is worth noting, the response correctly recalls, that the content of each Order was based on Nifongs 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. Such an approach would undermine the system of justice.
Nifong, in short, is arguing that his successful deception of the Court immunized him from any future ethics charges for his having lied to the Court in the first place.
6.) Nifong is still violating the law.
As the Bars response points out, North Carolina law is unambiguous: Anyone subject to an NTO must be given any report of test results as soon as such a report is available. Yet as of today, Nifong has never provided the relevant information to the 43 unindicted players, and he certainly didnt provide it to the three indicted players as soon as the information was available.
In devastating fashion, the Bar concludes that Nifong wants the Disciplinary Hearings Commission to 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. Defendants 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.
I believe you have it exactly right. If I understand this correctly, he provided only a partial report. He gave raw data covering the rest but excluded a report on it that was required. From the article, it sounds like he denies withholding anything that was required.
I have read that the defense actually believes there is still more data being withheld.
My bet is that this clown will skate..........Lawyers protect their own......even the stupid and criminal ones.
Where's the NC state legislature? Hiding under its collective bed?
and what about the testimony of that lab guy?
He messed with the WRONG Mamma's son..
That mother of one of the boys is going to make good on her VERY believable promise to make Nifong regret his racist pandering to the black voters of Durham and his violation of of her son's civil rights and life ----- for the rest of Nifong's life..
You just gotta love a woman and mother like that...
I guess Nifong should be happy he didn't mess with my sainted wife's son........
Mrs. River Rat would be standing over his mortal remains reloading her Kimber Ultra CDP II....
"Where's the NC state legislature? Hiding under its collective bed?"
NC legislator's emails :
email@example.com (readable by all Legislators
firstname.lastname@example.org (readable by all Senators)
email@example.com (readable by all House Members)
He has become a very big problem for both the state, and the state bar, they will see that he never practices law again.
I won't argue that it's right, but defense attorneys are allowed far more latitude, than prosecutors.
One reason is that it is a defense attorney's job to get the best result for their client, while the prosecutor is employed by the people, and is supposed to seek the truth and a just verdict.
Another reason is that the prosecutor has the force of government available to ruin people's lives (as Nifong has so aptly demonstrated).
Actually a rape could have occurred but not by the lacrosse players.
Only half the DNA analysis has been made public. Bill O'Reilly said that there was evidence of seven different men in her. Maybe when the full analysis is public there will be evidence of more than ten men. Maybe she was gang raped - but not by those who are accused.
"The former prosecutor in the Duke lacrosse sexual assault case didn't violate the constitutional rights of the three charged players,..."
But it sure wasn't for lack of trying. That, Mr. Nifong, is the rub.