Nifong Motion Denied

A somber Defendant Mike Nifong walks out of the State Bar hearing
after his motion to dismiss was denied.

At today's hearing before the State Bar, a nervous Dudley Witt, attorney for rogue prosecutor Mike Nifong, encountered immediate resistance from Disciplinary Hearing Committee chair F. Lane Williamson. As the hearing began, Williamson noted that, although he felt the briefs alone would be sufficient for the Committee to decide the fate of Defendant Nifong's motion to dismiss some of the charges against him, he would hear oral arguments as requested by Witt.

The stuttering attorney meekly attempted to present some of the arguments contained in his brief. Each argument fro the shaky Witt was met with skeptical questions from Williamson. "Do you believe a Brady violation is required for there to be a violation of Rule 3.8(d)" Williamson asked while cutting off Dudley. Later, Williamson would again ask if a constitutional violation must be required before there could be a breach of ethics rules. When Witt attempted to evade the question, Williamson supplied his own answer: No.

Quickly, Witt abandoned the arguments presented in the brief he filed in support of his doomed motion. Instead, the unsteady attorney turned to two new arguments to bolster his attempt to lessen the charges filed against Defendant Nifong. The first argument questioned the definition of "timely" while the second desperately invoked Wendy Murphy's rape shield lunacy. Witt's new tack met the same resistance from DHC Chair Williamson.

In another victory for the blogs, Williamson answered Witt's argument that "timely" was undefined by turning to an obscure Colorado case, first presented here in response to Defendant Nifong's initial answer to the bar complaint. Citing the decision by the Colorado Supreme Court, Williamson endorsed the definition of "timely" as "before the next critical stage of the proceeding." (While it is uncertain if the State Bar found the cite to the Colorado case on these pages, it is a safe bet that Spin Master David Freedman is not a LieStoppers reader as he asked Williamson for direction in finding the case.)

Colorado Supreme Court:

“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.”

Further, Williamson also accepted the Colorado Court's definition of "critical stage" which includes preliminary hearings as a critical stage.

Colorado Supreme Court:

"Although a preliminary hearing is not constitutionally mandated, it is a procedure incorporated into our Rules of Criminal Procedure. It is a critical stage of a criminal proceeding, not only for such purposes as the Sixth Amendment right to counsel, Coleman v. Alabama, 399 U.S. 1 (1970); Denbow v. Dist. Court, 652 P.2d 1065, 1066 (Colo. 1982), but also for case management purposes.⁸ Notwithstanding the low burden the prosecution has to meet to have a defendant bound over for trial, a preliminary hearing is a serious part of the case. See McDonald v. Dist. Court, 195 Colo. 159, 161, 576 P.2d 169, 171 (1978) (stressing that “a preliminary hearing is a critical stage in the prosecution of a defendant and should not be conducted in a ‘perfunctory fashion.’”) (quoting Maestas v. Dist. Court, 189 Colo. 443, 446, 541 P.2d 889, 891 (1975)).

"For our purposes, therefore, the important thing is that, although a critical stage of the proceedings was about to occur, the respondent made a conscious decision to delay disclosure in both cases until after those proceedings concluded.

...

"We therefore hold that, when a prosecutor is aware of exculpatory evidence before any critical stage of the proceeding, she must disclose that evidence before the proceeding takes place."

Embracing the Colorado as a guide, Williamson dispatched Nifong's argument that discovery only needed to be provided in a reasonable amount of time before trial to comply with ethics rules. In response, a desperate Witt comically attempted to employ Murphy's rape shield lunacy but was shot down immediately. Before he could finish saying "rape shield," Williamson interjected by telling the defeated attorney that he had read those arguments and found them to be "preposterous."

Williamson also saw fit to answer Defendant Nifong's argument that providing 1,800 plus pages of underlying data constituted providing a report. Liking the ploy to presenting 1,800 plus pages of financial data in place of a financial report, Williamson suggested if one were trying to hide something within a mound of data they would do exactly what Nifong did rather than being forthright and presenting it out front in a report.

After a very brief presentation by State Bar prosecutor Katherine Jean, Williamson conferred briefly by phone with the other two members of the DHC, Sharon Alexander and R. Mitchell Tyler, before announcing his decision to deny the motion to dismiss.