NIFONG PART FOUR: WHEN YOU FIND YOURSELF IN A HOLE.......

......Stop Digging!

This is the fourth and final phase of the Nifong Charge and it is potentially the most devastating. Of course, All are reminded that this is only a charge and must be proven before the appropriate tribunal before there are any consequences.

The Overall claim of this portion of the complaint is "Misrepresentation and False Statements to State Bar's Grievance Committee".

The first thing we have to recognize about this charge is that it is different from the preceeding three in the environment in which it is alleged to have taken place. All the other alleged misconduct took place in the rough and tumble biospheres of either the National Press or a hotly contested criminal case. Those environments are not designed to encourage reflective or philosophical thinking or utterances. When responding to a bar complaint, there are two important differences. First, the quality of witnesses against you is high. The Bar Committee is made up of folks who live in the "Question and Answer" format. They understand the gravity of statement made by a party-witness to a disciplinary proceeding. Moreover, the answers given in that environment are in examinee's own writing, with no time constraints and with advice of counsel, or an actual transcript. In other words, unlike the previous environments, there are really no excuses for "misspeaking".

The charges, slightly oversimplified are these:

Nifong admitted to the bar that he had talked to the scientists but he denied that he had discussed with one of them the concept of leaving out the exculpatory material (DNA) and amended his statement to say that leaving out the non-suspect DNA was based upon "privacy concerns". The charge then goes on to state a bunch of collateral evidence which tends to show that Nifong was unconcerned about privacy. Thus his statement explaining the scheme to leave out the non-suspect donors' DNA was false and made in connection with a disciplinary matter.

The Bar then states that Nifong stated to the grievance committee he "didn't know" the non-suspect DNA was not provided to defense counsel until they filed their Motion to Compel in December of ''06. Without a lot of foreplay, the bar alleges that's a lie because he was talking to the scientist about leaving out that information as early as April '06.

The complaint then moves to Nifong's statements concerning his allegedly misleading statements to the Court (which we examined earlier). He alleges he was referring not to the existence of potentially exculpatory DNA but to what he called defense counsel's "allegation that an intentional attempt to conceal (exculpatory evidence) had been made." The State Bar points out that the only problem with that explanation is the Duke Defendants NEVER MADE SUCH AN ALLEGATION. Essentially he is charged with two material lies in one sentence here.

I view this claim as big trouble, a professional greasefire. The more water the respondent tries to throw onto it, the brigher it burns. Even though it will be different people, the folks determining the outcome of this complaint are the folks who believe they were lied to. They are also the people who have the power to short-circuit an attorney's livelihood. Additionally, the problems with allegations two and four are that they are the kind of conduct which requires reflection. They don't happen on the spur of the moment. It took thought and time to conspire with the scientist to deep six the non-suspect DNA. It took thought and time to compose the answers to the grievance committee. So, if there are mistatements in this phase, they are knowing, intentional and willful mistatements. Not just poor impulse control. Not a good career track.

There will come a time, I'm guessing, when Nifong's defense position becomes untenable. To me, it would be very surprising if a good deal of time were not allowed to pass in this case and then a negotiated settlement entered into. It is difficult to see how Nifong's defense could sustain the testimony of Judge and a forensic scientist describing his conduct in real time. I would look for, within the bounds of ethical lawyering on both sides, a very slow play on this (preferrably until the criminal case is disposed of) and then a deal.

Finally, a word in defense of the NC State Bar. This organization has been vilified in some NC based blogs and publications. The decision to file this complaint had to be agonizing. Even a first year law student would have figured out that a charge including suppressing exculpatory material would lead to Nifong's office having to withdraw from the criminal case. This sets up a choice between policing the bar in real time and depriving the people of their elected representative, an agonizing choice between two compelling values. To those who say it was too slow, I say, it was a momentous decision by a serious, deliberative body and the time taken was probably not a sign of cowardice or collusion, but of earnest due care.

Tomorrow, Who has the power to clean up the stain this conduct has left on the American Criminal Justice System? It's probably not who you think.

To all of those out there who have contacted me personally to acknowledge appreciation of this series of posts, Thanks. Most of you, I didn't even know you had a computer!