Mike Nifong’s January 16 response to the Bar contains one particularly astonishing assertion. Relying on the transcript of the December 15 hearing, Nifong denied any suggestion that he entered into an agreement with Brian Meehan to intentionally withhold exculpatory DNA evidence.
After citing two quotes from Meehan, [the] district attorney asserted,
A fair reading of the totality of Dr. Meehan’s testimony reveals that the concern over privacy matters originated with him, that he sought to provide a report that would both meet the State’s needs and allay those concerns, and that the way he balanced those competing interests was not dictated by my instructions.
Does Nifong believe that the Bar is unable to consult the record of the December 15 hearing? Among other revelations by Meehan, the transcript includes the following:
DR. MEEHAN. It is true that we did not release the full profiles of all the players in this case. And I did that after discussions with Mike Nifong because of concerns about getting those profiles out into the public media. (p. 23)
DR. MEEHAN. Now, had the client himself, Mr. Nifong . . . request[ed] that additional information, we would gladly supply it. (p. 24)
DR. MEEHAN. But if it were a full profile and did not match any of . . . the reference specimens, our client, Mr. Nifong, specifically wanted . . . to know, “Do any of the reference specimens match any of the evidence?” And that’s the report that we gave him. (p. 30)
DR. MEEHAN. This report was a specific report at the request and in discussions with Mr. Nifong that we would report only specimens that matched evidence items. (pp. 59-60)
DR. MEEHAN. Mr. Nifong agreed with me that it was okay to do this. (p. 61)
DR. MEEHAN. Mr. Nifong agreed that it was okay to report the evidence items and reference items that matched.
MR. BANNON. But at the same time, he knew that there were male DNA characteristics on some of those rape kit items that didn’t match reference swabs, correct?
DR. MEEHAN. I would have to assume that he did know that, right. (p. 61)
DR. MEEHAN. We limited the scope of this report to only that evidence that, in my
words, in my terms, was probative. All right. That being the evidence, as it says on the report, that matches suspects to evidence. (pp. 64-65)
DR. MEEHAN. We would be glad to provide a more thorough report, a report of every single profile upon the request of our client as was indicated on this report . . . Mr. Nifong is our client and had he said, “Listen, I want a report on everything,” that’s what we would produce. (p. 65)
MR. BANNON. You didn’t include the results for each DNA test in your report dated May 12; is that correct?
DR. MEEHAN. That’s correct.
MR. BANNON. So you violated this protocol of your own lab?
DR. MEEHAN. That’s correct.
MR. BANNON. And you violated this protocol of your own lab because the district attorney told you to; is that correct?
DR. MEEHAN. No. It’s not just because the district attorney told me to. (p. 66)
DR. MEEHAN. We agreed with Mr. Nifong that we would report just the stuff that matched so that it would, so the report was limited in its scope . . . and by the letter of the law, by the letter of the wording of the standard, you’re [Brad Bannon] absolutely correct. It diverges from the letter of that standard, okay. (p. 66)
MR. COONEY. Did your report set forth the results of all of the tests and examinations that you conducted in this case?
DR. MEEHAN. No. It was limited to only some results.
MR. COONEY. Okay. And that was an intentional limitation arrived at between you and representatives of the State of North Carolina not to report on the results of
all examinations and tests that you did in this case?
DR. MEEHAN. Yes. (p. 85)
Can Mike Nifong seriously maintain that the totality of the above record suggests that he and Dr. Meehan did not enter into an agreement to intentionally withhold exculpatory DNA evidence? It is as if, in the exchange above, Nifong wants the Bar to believe that Meehan really said "no" to Cooney’s question.
Further qualifying Defendant Nifong’s response as an audition for America’s Dumbest Criminal, are some of the other exhibits he offers to support his claim of having no memory of meeting with Dr. Meehan, Sergeant Gottlieb, and Investigator Himan on April 10. One such exhibit is a page from Investigator Himan’s supplemental case notes, which notes the date, the time of the meeting, and Defendant Nifong’s attendance.Offering documentation of his presence at the April 10 meeting, while simultaneously claiming, “I have no documentation or other evidence that I ever attended such a meeting," is certainly a bizarre defense strategy.
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In her notes, Inv. Soucie indicates that Defendant Nifong instructed DPD to “nail down” the pseudo victim’s pre-party activities. Seemingly, Himan’s April 6 interview with the accuser was an attempt to follow Nifong’s directive. Not surprisingly, the accuser’s tale of her pre-party activities contradicts at nearly every turn the very detailed account offered by her driver, Jarriel Johnson, later that same day.
Handwritten Statement of Jarriel Lanier Johnson, Raleigh, NC. The driver for
Crystal Gail Mangum made - 6:37 - 7:50 p.m. April 6, 2006
I was called by Crystal on [Friday] March 10, 2006 to drive her to Holiday Inn Express in Wakefield. I picked her up at her parents house around 1:50 p.m. She said her appointment was a 2 p.m. We arrived at the hotel around 2:20 p.m. After I dropped her off I returned home.About 2:50 p.m. I left to pick Crystal up at the hotel. After we left the hotel we returned to her parents home. There we stayed for a couple of hours until about 7 p.m. At that time I asked her if we could go to my parents house so I could shower. With my parents being there we decided to come back to Durham.Once back in Durham we rode around for about half an hour, then we went to Forest Hill Park. We stayed there for about an hour or so. Then Crystal asked me if I would take her to Hillsborough. We got to Platinum around 11 or 12 where she went in and I remained in the car. Around 2 a.m. I go inside to find her, she asks if we can stay for about another hour. She then asks me if we can stay just one more hour. We leave at 4:30 when the club closes. She then tells me that she has a job at the Millennium Hotel. We get there at 5:15 a.m., where she goes in and I remain in the car. At about 6:15 a.m. she returns and I driver her back to her parent's home. We say good bye and I head back to Raleigh. I arrive at my parents home at 7 a.m. and go to bed.
Around 2 p.m. that afternoon Crystal calls me asking if I could drive her that night. I agree and ask what time, she says around 4 p.m. As I get close to her parents house she calls me and says that Matt [Matthew Murchison, her boyfriend] is coming over to bring her something.I told her that I would wait until she called me at the the car wash on Fayetteville St. Around 5-5:30 p.m. she calls me and tells me that he's gone. About 5-10 minutes later I arrive at her parent's house. Her daughter lets me in. I sit there and play with her kids while Crystal is getting ready. Once she is ready we leave and ride around for about half an hour. We then go over to Forest Hills Park and sit and talk. Around 8 or 9 she asks if we could go to Raleigh to find this guy she met. I say okay. We drive around downtown Raleigh trying to find this guy. We have no luck so we decide to get a hotel room and wait to see if he calls. This is about 9 p.m. or so. We go to get something to at a Chinese place over on Wake Forest Rd. Once we get our food we take it back to the hotel and eat. After eating we get into bed and watch TC. While watching TV we engage in sexual intercourse. Around 12 a.m. I leave. I tell her to call me in the morning so I could pick her up.
At around 11 a.m. Crystal calls me asking me to pick her up.I arrive at the hotel around 11:30 am. I call Crystal to see where she is and she tells me that she went for a walk. I drive up and down Lane St. trying to find her. She calls me back asking me to meet her at the hotel.When I arrive she is with an older gentleman that she says wants to see her perform. I go back down and wait in my car until I see the man come out. After I see him leave I go to the room and help Crystal gather her things. We then head over to my parents house and hang out for about 20 min. I told Crystal that I was going to wash my car and she suggest we go to one of the pay car washes. While there I began to wash my car while she talked on the phone. I then told her that I was taking her home.On the way to I-540 she told me she needed to use the bathroom and wanted me to pull over. Once I did she got out of the car and started walking down Creedmoor Rd. I pulled my car over and got out to chase her down. She told me to leave her alone. I went back to my car and pulled up in front of her. Once again I pulled over and asked her to get in. She again told me to leave her alone. I went up several yards and waited until she came towards me; again I asked her to get in the car. She then got in. We went back to my parents house where we talked it out. We sat on the couch for a little while and then went to my bedroom. While there we talked and she knocked over her drink which spilled on my phone. After that it was around 4-4:30 p.m. and I took Crystal back to her parent's house.Later on that night I noticed that my phone wasn't working properly. I called Crystal and told her that it was mess up. At that time she told me that she had a bachelor party to work that night, and asked if I could drive. I agreed. Later on that night I couldn't get my phone to work and called her to let her know that it's not working and wouldn't be able to take her. She said that was okay and that Brian would take her. I told her to call me when she got home and she said okay. About 1 a.m. or 1:30 a.m. I received a call from Tammy asking if I was Crystal's driver that night. I told her no and she hung up.
I tried calling Crystal for the next couple of days and didn't hear from her until Thursday. Looking at my datebook on my cell phone I realized that the dates that I engaged in sexual intercourse with Crystal was off by a week. our last encounter together was the Sunday prior. [The Johnsville News]
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If a rapid return of results was a priority (DNA Securities met this need by conducting its expedited testing of the rape kit on Saturday, April 8, and Sunday, April 9) as directed by Defendant Nifong, it is extremely unlikely he would not have attended the April 10 meeting to learn the results he was so eager to obtain less than a week earlier.
The Fong never ceases to amaze and the hits just keep on coming. As a recently retired Federal Agent (and no, I can't explain the lack of DOJ/FBI involvement to date), let me make a few observations regarding the April 10 meeting (or non-meeting in the Fong's case) with Meehan:1. The fact that the DA and 2 investigators in the case travel to meet with Meehan indicates the importance with which the Fong viewed this get-together. I suspect that the Fong wanted to make sure that all of the principals were "on the same page" regarding how the DNA results were going to be handled. Otherwise, there is no good reason for the Fong (who claimed to have been so occupied with additional matters at this time) as a DA would expend his time on such a matter. The fact of the matter is that LE personnel are usually very busy, juggling multiple investigations (of varying importance granted). If the Fong just wanted to get a written report, a summary, or whatever regarding the DNA testing, he would have sent one investigator to pick it up. Why waste anyone else's time. On the other hand, if the Fong wanted Meehan interviewed regarding the significance of the DNA data, he would have sent two investigators. ANY potentially significant witness interview is handled by at least 2 people, particularly if the interview is not recorded. There is a common misconception that LE uses 2 people only in subject interviews/interrogations, in order to avoid a "he said, she said" controversy later on. However, a "back-up" interviewer is just as important in significant witness interviews, and Meehan clearly was a potentially significant (perhaps star) witness. Again, the fact that the Fong went with Gottlieb and Himan tells me that this meeting was not for the purpose of either securing written material or conducting a formal interview of Meehan. Instead, it was to "lock-in" all of the participants in a conspiracy..2. Regarding note-taking or lack thereof: The paucity of notes regarding the April 10 meeting is mind-boggling, considering the significance of what was apparently related by Meehan to the Fong and his boys. NO sane LE officer would attend such a meeting in which vital information is being provided by a potential trial witness and fail to take notes, and copious notes at that. To do otherwise is simply set oneself up for a brutal cross-examination at trial. Or just as likely a serious tongue-lashing by a judge during a probable cause hearing (oops-I forgot-the Fong made sure that a probable cause hearing was not going to be an issue) In my experience (31 years), notes were always taken by the lead interviewer of any potential witness. Those notes are dated, secured and not altered after the fact, for the duration of the investigation. Same would apply if the secondary interviewer took notes. And it wouldn't matter if the notes were written on lined paper or the back of a matchbook. NO LE officer who wants to keep his job is going to rely on his memory (the defense will eat Gottlieb alive if this ever goes to trial, regarding his lack of case notes for months!).3. I'll leave aside all of the "privacy concerns" alleged by the Fong and others-that BS has been skewered enough by others on this board. But I am so sick and tired of the Fong's attempt to explain his lack of providing full and prompt discovery of the DNA-related data to the defense. All of the "positive" results, "negative" results, just what constitutes "exculpatory" evidence, etc. ENOUGH ALREADY! The Fong had an AFFIRMATIVE obligation to turn over EVERYTHING. It's not that complicated..4. I've done some criminal investigations, but mostly counterespionage investigations. I've worked with scores of other Federal Agents, Assistant U.S. Attorneys, and counterparts from many other Government agencies. You encounter the "good, the bad, and the ugly" in all groups. I've met other Agents and some Asst. US Attorneys who certainly would not trip over themselves to search out exculpatory material. But I've never worked with anyone who would deliberately ignore such evidence and/or would attempt to conceal it. Others have commented re what point they knew this whole thing was BS. For me there were two very clear indicators. One, when the defense team claimed that the DNA would come back negative since there had been no sexual contact period. Defense attorneys don't box themselves (and their clients) in unless they are absolutely convinced of their clients' innocence. Second, when the the Fong refused to meet with the defense to consider exculpatory physical evidence (the photos, ATM and cell phone records) and would not take the defense up on polygraph offers. When I was working cases, we would by giddy if a suspect/subject volunteered to give a statement and/or take a polygraph-particularly if the individual was not represented by counsel. And the more statements the better-you're always looking for inconsistencies.5. As indicated above, I've worked with Asst. USAs who were very aggressive in pursuing subjects in a case. However, these guys (and gals) like to WIN-that's how they get their reps, go into private practice and make the big bucks. If I as an investigator started bring back conflicting evidence (physical or testimonial), they would be backtracking like crazy. I never worked for one who would go forward with a case when there was doubt about the guilt of the accused. In fact, most of them were nervous nellies - still biting their nails up till trial date, even with the strongest of cases. That's what is so frightening about the Fong and his toadies in Durham. He (and they) obviously thought they could get away with it. The Fong either thought that if it came to it, a local jury would buy this crap, or that at least one of the indicted would plead out to SOMETHING..What I've seen unfold over the past year is so foreign compared with my LE experience. I realize that there are some who post here who are convinced that this sort of prosecutorial corruption is commonplace. Perhaps it is, but I never saw that at the Federal level. Overzealous at times, yep. Priorities all screwed up (Scooter Libby comes to mind), yep. Incompetent, yep-some of those as well. But I never met a U.S. Attorney (or an Assistant) who would knowingly indict an innocent person AND convince several federal investigators to join him in such madness.
Other outtakes from Defendant Nifong's America's Dumbest Criminals audition include:
- Reminding the State Bar that his misrepresentations to the court may also include pretending that he did not discuss the case with the false accuser while meeting with her on April 11, the day after learning that twenty-two separate semen and epithelial fractions recovered from her nether regions and panties belonged to persons other than those she accused. (As a bonus, Defendant Nifong informs all that Jarriel Johnson has been replaced as Ms. Mangum's driver by the mutli-talented Sgt. Gottlieb.):
At this time, the cable TV debut of "America's Dumbest Criminals, The Nifong Edition" has not been scheduled.