Nifong Confesses to the NYT

In a three hour interview with the New York Times on Thursday, Durham County District Attorney Mike Nifong admitted that he was aware of the results of DNA testing prior to seeking indictments in the Hoax. DA Nifong also admitted that he knew the results to be both relevant and exculpatory.

"On Thursday, Mr. Nifong acknowledged knowing about those test results before any players were indicted last spring. He also acknowledged that the results were relevant and “potentially exculpatory,” and he said he should have given the results to the defense before May 18, the day he signed a filing that said “the state is not aware of any additional material or information which may be exculpatory in nature.”

District Attorney Nifong’s confession confirms the testimony given in court by Dr. Brain Meehan last Friday.

"Did Nifong and his investigators know the results of all the DNA tests?" Cooney asked.

“I believe so,” Meehan said.

“Did they know the test results excluded Reade Seligmann?” Cooney asked

"I believe so,” Meehan said. LS

While DA Nifong admits to his failure to comply with his legal discovery obligations, he excuses his illegal conduct as the product of an accidental oversight.

“But Mr. Nifong denied the defense team’s contention that he had deliberately tried to hide the results or delay their release. Mr. Nifong, who is personally overseeing this case, said that given the volume of evidence he had not realized that he had failed to turn over those specific DNA test results. “That wasn’t something I was concentrating on,” he said.”

Nifong’s transparent rationalization is belied by the continued testimony of Dr. Meehan.

"Was the failure to report these results the intentional decision of you and the district attorney?" Cooney asked.

“Yes,” Meehan replied." LS

Making Nifong’s anemic excuse more troubling, and highly questionable are his own actions to withhold the exonerating evidence from the defense. In court, DA Nifong mischaracterized his meetings with Dr. Meehan by specifically stating that those meeting did not include discussion of the evidence produced by Dr. Meehan’s testing. His false contention that the substance of those meetings were protected as work product, were readily accepted by a trusting Judge Ronald Stephens.

Conspiring with Dr. Meehan to exclude the exonerating results of the DNA testing from the reports, and denying that the meeting were evidentiary, were not DA Nifong’s only attempts to delay or withhold evidence. In September, DA Nifong offered a written objection, from Dr. Meehan to the court, in an effort to avoid compliance with the discovery statutes. In addition to presenting Meehan’s objection, Nifong also mocked the defense for wanting the information that he admits now they had rights to having several months prior.

The timing of this three hour interview with the New York Times appears to make clear that the spin which has followed the dismissal of the rape charges, and perhaps the dismissal itself, was a coordinated effort to undue the damage done by the latest indications of misconduct on the part of the District Attorney. As Nifong chatted with Duff Wilson, the recently promoted Linwood Wilson interviewed the accuser.

“As it happened, as Mr. Nifong made those remarks on Thursday afternoon, the woman was expressing new doubts to his investigator, doubts that forced him to drop the rape charges late Friday morning.”

Despite Nifong’s confession to knowing of the exonerating evidence prior to seeking indictments in April, Wilson allows Nifong to mischaracterize the DNA evidence as “new.”

“He also accused defense lawyers of using the new DNA test results as part of a campaign of “character assassination” against the accuser.”

The only thing new about the DNA test results is that the world now knows of them and the State Bar and Department of Justice now know that DA Nifong colluded with the lab to hide the results while he abused his prosecutorial discretion in bring charges against men proven to be innocent by those tests.

The magnitude of deception revealed by Nifong’s confession to the Times and Dr. Meehan’s admissions in court becomes crystal clear when the District Attorney’s, and Police Investigators’, knowledge of this definitive evidence of innocence is put into context of their subsequent words and actions. From an investigative standpoint, these test results, presented on April 10 to Nifong, Inv. Himan, and Sgt Gottlieb, offered concrete evidence of the innocence of each of the four players identified by the pseudo-victim as her three imagined assailants during the contrived lineup session of April 4, 2006. Addressing the press yesterday, defense attorney Joe Cheshire makes this point abundantly clear:

"Last week, it was clearly demonstrated that significant exculpatory evidence had been purposefully withheld from the defense in this particular case. It should not be lost on you all, who have covered this case, that significant exculpatory evidence proved that there was no sexual contact between these young men and this woman.”

With the knowledge that eighteen separate DNA samples recovered from the accuser’s nether regions within a few hours of the imagined non-event matched at least five other men but none of the forty-six suspects, Nifong, Himan, and Gottlieb proceeded willfully to frame innocent young men for a crime they did not commit. Consider some of the actions by these men in the days that immediately followed the revelation by Dr. Meehan.

• Nifong, Himan, and Gottlieb met with the false accuser on April 11, 2006 to, if you chose to believe Nifong, inform her on how the case framing the innocent men would proceed.
• Nifong, on April 11, 2006, stumped at a North Carolina Central University forum by laying out the “evidence” against the framed young men and assuring the community that he was certain a rape had occurred and that he would continue to seek “justice.”

"I assure you by my presence here that this case is not over."

“We're still waiting for the results of DNA tests.”

“In 75 percent to 80 percent of sexual assaults, there is no DNA evidence to analyze.”

"It doesn't mean nothing happened. It just means nothing was left behind."

• Following the NCCU forum, Maj. Ron Hodge, the assistant chief of the Durham Police Department would add to Nifong’s message, "I don't think we would be here if it wasn't (a strong case)."
• In an interview with the Charlotte Observer that ran on April 11, Nifong explained away the reported lack of DNA by stating, "I would not be surprised if condoms were used. Probably an exotic dancer would not be your first choice for unprotected sex."
• On April 12, 2006, Nifong prepared the indictments, that Himan and Gottlieb would present to the Grand Jury a week later, and motions to seal the indictments he confidently expected to be returned from the Grand Jury as a true bill a week later. Sealing the indictments ensured the campaign serving perp walk photo opportunity rather than allowing the framed young men to surrender as they were willing to do.
• On April 13, 2006, investigators working under the direction of chief investigator Nifong entered Edens dorm without a warrant and attempted to interview players without their attorney’s present after first perpetrating an email ruse, using a lacrosse players Duke University email account. The ruse appears designed to frighten a false confession or at least create panic as it suggested that the player whose account was used would come forward with false information.
• On April 13, 2006, Nifong, with ominous foreshadowing, abruptly cut off Wade Smith and other defense attorneys when they attempted to show him additional exculpatory evidence. In refusing to view the evidence, Nifong told the attorneys that he knew more about the case than they would ever know and that he intended to indict two players.
• Dr. Meehan, on April 14, 2006, asked for and was provided with a limited selection (24 pages) of the underlying data produced by the SBI during its regular autosomal DNA testing. Despite finding proof of actual innocence, Meehan continued with the quest to build a case against the innocent men.
• On April 17,2006, co-conspirators Himan and Gottlieb testified before the Grand Jury. That a true bill was given the indictments reveals that they testified not to the innocence demonstrated to them by Dr. Meehan’s finding but rather to a false case showing the possibility of guilt.
• On April 18, 2006, Nifong refused to meet with Reade Seligmann’s attorney, Kirk Osborn, who also wanted to share exculpatory evidence with Nifong. Dismissing Osborn by proxy, Nifong sent a messenger to say, “I saw you on the TV saying your client was absolutely innocent, so what do we have to talk about?”
• Inv. Himan signed two sworn affidavits on April 18, 2006 that stated his belief in the guilt of Collin Finnerty and Reade Seligmann. These affidavits were used to establish probable cause for search warrants in an attempt to obtain additional evidence to help frame the young men he knew to be innocent.

Nifong’s attempt to spin his misconduct, via Duff Wilson, into a simple oversight of “something I was [not] concentrating on” appears to fail the smell test horribly. While it is clear that he did then, and continues to now, ignore the evidentiary value of the DNA tests, it appears that considerable effort was put into avoiding disclosure of that evidence. Not only was considerable effort put into not disclosing the evidence, but also the investigation and prosecution proceeded as if it did not exist.

Consider as well the efforts that were put into spinning the public perception of the value of the DNA testing.

"How does DNA exonerate you? It's either a match or there's not a match…If the only thing that we ever have in this case is DNA, then we wouldn't have a case."

"The absence of DNA doesn't prove anything."

"DNA results can often be helpful, but, you know, I've been doing this for a long time, and for most of the years I've been doing this, we didn't have DNA. We had to deal with sexual assault cases the good old-fashioned way. Witnesses got on the stand and told what happened to them."

"It doesn't mean nothing happened. It just means nothing was left behind."

"I would not be surprised if condoms were used. Probably an exotic dancer would not be your first choice for unprotected sex."

"To say, well, you know, her profession was not really the most honorable in the world, we really don't have the strongest case in the world because there's no DNA, so let's forget about it. Well, ladies and gentlemen, that's not doing your job."

Considering, in total, the extreme efforts by DA Nifong to spin the DNA test results, to hide the complete results, and now to lessen the implications of the revelation of his misconduct, it would appear that the exonerating evidence is, in fact, something that he was concentrating on. Concentrating on hiding, hiding from, and spinning, that is.

Adding to the comedy of the NYT story, is Nifong’s assertion, by email, that he was willing to follow the evidence. Quite clearly that has not been the case but rather the opposite of nearly everything he has done in promoting his Hoax.

"Mr. Nifong declined interview requests Friday, but said in an e-mail message that his decision to dismiss the rape charges showed he was “willing to go in whatever direction the evidence takes me.”

Perhaps the most curious item presented in the New York Times PR piece is Nifong’s assertion that he would drop the case if the accuser was unable to identify her “assailants.”

“If she came in and said she could not identify her assailants, then we don’t have a case,” Mr. Nifong said

Considering that on two separate occasions she did indeed come in a fail to identify her “attackers,” Nifong’s contention that her failure to identify would end the case is blatantly untrue. In fact, it has been demonstrated that the manufactured, made-for-video, lineup session on which the indictments were based showed a great deal of uncertainty on the part of the accuser. If identifying four people as her three attackers, inventing a mustache that never was, and “recalling” people who weren’t even at the party is not a clear indication of uncertainty, nothing is.

Curiously, Nifong appears to be trying to lend material to the defense’s argument that the photo identifications should be suppressed.

“You can’t always tell from a photograph,” he said.

Bizarrely, Nifong asserts that the accuser’s ability, or not, to identify the accused in court on February 5 will be determine whether the case continues or dropped.

“The only real time that you’re able to say if you have a misidentification is to put the person in the courtroom with the other people.”

Mr. Nifong said he intends to ask the woman about her level of certitude after February’s hearing. “It’s an opportunity to say, ‘Yes, I’m 100 percent certain these are the people who did it,’ ” he said. “It’s also an opportunity to express doubt.” Given the absence of physical evidence, he said, any doubts from the woman could end the prosecution for one or more of the defendants.

Considering the accused’s faces have been plastered on television screens, magazines, and newspapers nearly non-stop since Nifong’s false prosecution began, it hardly seems as if an identification now, or six weeks from now, would have any merit. At this point, if Reade Seligmann showed up at my door, my dog would be able to identify him. How Nifong could suggest that identifying three men, who will obviously be the youngest people sitting at a table of attorneys, is the only way to know whether there has been a misidentification is a mystery that defies comprehension. I wonder why the NC Actual Innocence Commission left that one out of their recommendations for eyewitness identification.