NIFONG, PART THREE: FOLLOWING THE YELLOW BRICK ROAD FROM STONEWALLING TO DECEPTION

First, the Cliff's Notes Review:

Step 1 = injudicious pretrial publicity

Step 2 = Failure to disclose material favorable to the Defense and cooking the reports to prevent that disclosure.

What is the natural progression from that? Of course, Phase three, from page 21 to page 27 has the lovely, fetching title of "Misrepresentations and False Statements to the Court and Opposing Counsel." I must tell you, this one is not as sexy as it sounds.

Here are included things like Stating to the Court "I have turned over everything I have" when he had allegedly failed to include a verbatim of his conversations with two scientists, denying that he had any additional conversations with the scientists that were not reflected in the reports, a specific denial that there were additional statements made by one of the scientists, a direct statement and that "this was the first I heard of (exculpatory, third party DNA identified on the person of complaining witness)."

This section is artfully pleaded but looks a little weak on its face. It really reargues topic number two more than it successfully makes out a new charge of misleading the court. The statement that Nifong falsely avowed that he had turned over "...everything I have" appears to me to be more of a legal conclusion than a statement of fact. You almost have to read the whole complaint to get a feel for how this section is weaker than the first two. There's nothing in here for which one would earn a scouting badge but I'm not sure it properly pleads a stand-alone offense.

Please don't take this as excusing the behavior. If I were defense counsel, I'd be plenty steamed about this two-step with the evidence and the way the scientists' reports were schemed, but I think the specific claim of this segment's gonna be tough to prove and this segment of the complaint probably amended.

Once again, these are only written charges which have yet to be proven. If a "misleading a tribunal" charge is proved, it almost always results in time without a license. In fact, in all the time, I've done professional discipline work, I've only seen one case where a more lenient penalty was imposed. That was a unique case where the misleading attorney, one day later, called the misleading remark to the attention of the tribunal, fixed the result, made the other party whole for wasted attorney time and turned himself into the the disciplinary body.

A careful reading of this part of the complaint against Nifong causes me to believe the charges under this section are very unlikely to be proven. Tomorrow, we will take up Section Four, Page 27 through 33. This will reemphasize for us that the coverup is always equal to or worse than the infraction being covered up in terms of the pain it visits upon the one covering up. Also known as the "Nixon Rule".

Just for fun, let's say I'm right about this one and he is not found responsible for this conduct. Is a Judge every going to believe a single word he says about the conduct of his Office? That's the practical side of a prosecutor who is not a straight shooter. In the end, it impairs his ability to adequately represent the People he signed on to protect.

What a lot of people who have never done it do not appreciate is the unique position of a prosecutor. The courts must believe your word. The defense bar must believe your word. The police agencies must accept what you tell them and rely on it. Even the crooks have to believe your word is your bond or you're out of business. The system revolves around the honesty of prosecutors. Others can shave the truth, hold back relevant information and, while wrong, that conduct does not cause the sytem to break down. The minute any of these factions cannot accept the prosecutor as honest and reliable, we're just marching in place.