Flip Flop Filan

In an op/ed published at MSNBC's website last October, the network's Senior Legal Analyst, Susan Filan, confidently assured her readers that Durham County District Attorney Mike Nifong was not withholding evidence from the Duke Innocents. Further, Ms. Filan chastised the defense attorneys for questioning Mr. Nifong's ethics, informing the world that Mr. Nifong had an obligation to take the Hoax to trial. Blaming supposed pretrial prejudice created by those same defense attorneys, Filan bemoaned the difficult time Mr. Nifong would now have winning his "tough" case.

On October 12, 2006, Susan Filan's MSNBC article read:

Defense in Duke rape case keeps swinging
Filan: The D.A. is not withholding crucial evidence from the defense

The defense has come out swinging once again. They have written a letter to D.A. Mike Nifong accusing him of withholding crucial evidence in the Duke lacrosse rape case. They claim the D.A. has not turned over the contents of statements the accuser made to the D.A., nor have they received key police reports.

A copy of that letter was placed in court files, and a copy was sent to the judge presiding over the trial and to other attorneys. They might as well have taken out an ad on national television as well in order to get their message across. Because the parties are under a "gag" order now, the only way the defense can continue to try their case in the media and not in the courtroom is to file motions or write letters that become part of the court file which is a public record.

The letter was delivered to the D.A. when he was out of town attending a conference and could not be reached for comment...

The D.A. is not withholding crucial evidence from the defense. My position is the D.A. may have a work product privilege which precludes him from having to disclose the contents of his conversations with witnesses when preparing their testimony for trial.

More importantly, the D.A. has no reason to withhold crucial evidence from the defense...

The D.A. has expressed confidence in his case. The D.A. has a duty not to prosecute a case he knows he cannot prove beyond a reasonable doubt. But the D.A. does not have a duty to drop a tough case. This is a tough case, no doubt, and it may ultimately prove to be unwinnable, in large part because of pre-trial publicity and a prejudiced populace from which to select a jury of one's peers. But if the D.A. believes a crime was committed, no matter how difficult the case, or how problematic the victim, the D.A. has an obligation to take the case to trial and let the jury decide.

Justice is not a game, and hide the ball is not an option.

Today, in the wake of Mr. Nifong's disbarment, Ms. Filan now writes:

Nifong's punishment is extreme, appropriate
Let this case serve as a cautionary tale to all prosecutors who handle cases which receive media attention

While it may come as no surprise to anyone that Mike Nifong was swiftly and summarily disbarred just one day after his ethics hearing concluded, make no mistake: this is no small thing. For a panel of lawyers to strip another lawyer of his license to practice law is a rarity indeed. This is the legal equivalent of a unicorn sighting. Lawyers usually try to understand a fellow practitioner’s blunders and usually reprimand their colleague without issuing the ultimate penalty, the death penalty for a lawyer: disbarment. While it is public disgrace indeed, it also says “you are the worst of the worst and do not deserve to live as a lawyer. You are not trustworthy. The public has to be protected from you.”
...

It is a stunning fall from the height of his power. And it is absolutely the right thing to do. Nifong had many chances to escape this fate, yet he never chose to do the right thing. Not once.

Even when he resigned at the eleventh hour live from the witness stand to the surprise of his own staff and attorneys, he didn’t get it right. I think it was a ploy that cost him. It was a gross manipulation of sympathies. Sympathy of the public, sympathy of the bar committee reviewing his misconduct and perhaps even of those who he accused. But I think it just showed him to be tricky. Why surprise your own lawyers? Why wait until the last minute, when the hearing is virtually done, when your testimony is almost completed, to say what everyone needed to hear months ago?

Nifong finally admitted he made mistakes and violated the Rules of Professional Conduct under cross examination, but claims they were all unintentional and the result of getting a little “carried away.” Nifong was trying to spare himself. Nifong’s actions always serve Nifong. He used the Duke case to get re-elected, and he resigned to try to save his law license.

Had he admitted he made mistakes, dismissed all charges in December 2006 (not just the most serious sexual assault charges), had he resigned earlier, perhaps his actions would not be seen as simply self-serving.

I believe his tears were genuine, but I think he cried for himself, not for the damage he did to the public’s confidence in the criminal justice system, nor the damage to the three innocent young men whom he had indicted, nor the damaged reputation of Duke University or the sport of lacrosse. There are so many victims in this tragic tale of shattered lives. Not the least of whom is Nifong’s own teenage son who attended Friday’s hearing at his father’s request, only to see his father skewered on the witness stand, culminating in tears and resignation. Why put your own son through this? More of a ploy to gain sympathy, leniency, if not pity?

As a former prosecutor, I can tell you that when I saw a defendant express genuine remorse, I felt that half my job was done. In order to get a person to change, they have to understand and admit they did something wrong. But that is only half. The second half is to determine the appropriate punishment for the offense. It was my instinct to cut someone a break once they admitted they were wrong. But not if I felt the admission came at a time, or in a manner designed to manipulate my sympathy. And that is precisely how Nifong’s announcement struck me. He had his own lawyers convinced that he wouldn’t resign, and then sprung it on everyone from the witness stand. He couldn’t even be forthright with his own counsel.

The possibility that Nifong would be disbarred was real. But it took him until the bitter end to see what everyone else has seen for months. But his realization, admissions and resignation came much too late. When asked whether he still believes a crime was committed that night, he refused to admit that “nothing” happened that night in that house. He still believes “something” happened.

This statement supplies the bitter evidence that he was talking out of both sides of his mouth. He wanted to save his law license, but he could not completely exonerate the three young men whose lives he could have destroyed.

Nifong cannot have it both ways. He cannot cry, admit he made mistakes, resign, and yet still maintain that “something” happened that night. And expect to be treated with mercy.

Mercifully he wasn’t treated.

Let this case serve as a cautionary tale to all prosecutors who handle cases which receive media attention. Don’t go “Hollywood.” Remember your job is to keep the public informed, to try your case in courtroom, not the press, and to make sure those you accuse get a fair trial. Don’t play fast and loose with the evidence. Play by the rules. Prosecute mightily and fairly in the courtroom, and speak carefully and thoughtfully to the press.

Considering that all of the extra-judicial statements considered by the State Bar's Disciplinary Hearing Commission were made prior to her October article, it is difficult to accept that Ms. Filan's harsh condemnation is based on her own analysis. Rather, it appears that her judgment is based solely on the findings of the DHC. Left to decide for herself last October, Ms. Filan wrongly condemned the defense attorneys' court motions asking Judge Smith's help in uncovering the evidence Mr. Nifong has now been determined to have hidden. She mis-characterized these legal appeals as the defense team's using the media to make Mr. Nifong's task more difficult.

Now that the world knows better, Filan flops over the fence.

Not surprisingly, Filan does not mention that Mr. Nifong was also found guilty of withholding crucial evidence or her earlier unequivocal support of his rejected argument for doing so.

In October, Filan supported the notion that the self-deluded prosecutor, now found to have been motivated by self-interest, had an obligation to pursue his personal belief that "something happened." Today, she tells us that she believes he should have dropped the case months ago.

As a bonus, Filan misinforms her readers that yesterday's ruling will cost Mr. Nifong his pension.

...it strips Nifong of the only way he knows to make a living. Instead of collecting his pension and retiring, he will have to start from scratch.

Unfortunately, neither his disbarment nor his resignation will affect any pension benefits Mr. Nifong has accumulated to date. But her misreporting threatens to lead many to erroneously believe that poor Mr. Nifong's having to "start from scratch" financially is punishment enough for his egregious misdeeds, and that further consequences, beyond the DHC's move to protect the public and the profession from the menace he represents, would be exorbitant. Despite her title of Senior Legal Analyst, Susan Filan continues to demonstrate her ignorance of the facts and her inability to grasp the issues at hand.

While Ms. Filan's condemnation of Mr. Nifong is welcome and deserved, her failure to acknowledge her very public support of the actions that cost him his license to practice law, and apologize for doing so, reveals that she, like Nifong, would prefer to have it both ways.