Timely Disclosure

Defendant Nifong’s response to the Bar's Amended Complaint begins with a motion to dismiss some of the charges filed against him.

“The defendant moves the court for entry of an Order dismissing the portions of the plaintiff’s Amended Complaint as more specifically outlined in paragraphs (c) and (d) of the “Therefore” clause of said Amended Complaint. Plaintiff cannot establish as a matter of law that the defendant violated the provisions of the United States Constitution; N.C.G.S. § 15A-282, N.C.G.S. § 15A-903(a)(1) and N.C.G.S. § 15A- 903(a)(2); or the June 22, 2006 Order.”

Notably absent from the list of what cannot be established is a violation of the provisions of Rule 3.8(d) of the Revised Rules of Professional Conduct, the former of which is included in paragraph (c) and the current, included in paragraph (d). It’s difficult to imagine that Nifong genuinely expects the State Bar to dismiss charges based on violations of its Rules of Professional Conduct based on a claim that the transgression doesn't violate other provisions included alongside those rules.

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Our friend at UMR blog addresses this motion as Nifong’s version of the orphan defense.

“Man kills his mother and father, then asks the court for Mercy because he's an orphan.

“Nifong has filed papers that create the civil version of that cheeky defense.

“Loosely translated, his first position is that the complaint must be dismissed because he can't possibly have deprived the defendants of due process in that the process isn't over yet and it might be cured by the good efforts of others. To say the same thing another way, even accepting that he has done everything of which he is accused, he didn't screw up the trial of the defendants because the trial hasn't taken place yet.”

Faced with a similar motion on appeal, the Colorado Supreme Court ruled as follows:

“This court now holds that Rule 3.8(d) contains a materiality standard requiring a prosecutor to disclose exculpatory, outcome-determinative evidence that tends to negate the guilt or mitigate the punishment of the accused. We further hold that, to fulfill the “timely” disclosure requirement, if evidence is material to the outcome of the trial, then the prosecutor must disclose that evidence in advance of the next critical stage of the proceeding – whether the evidence would particularly affect that hearing or not.”

It would appear that Nifong’s motion to dismiss a portion of the charges is little more than a sleight of hand ruse designed to distract from his failure to comply with the Bar’s Rules of Professional Conduct that required him to provide timely disclosure, rather than employ gamesmanship requiring the defendants to attempt to ferret out what he was hiding