Neff: "Moron Talk"; Nifong's Lies To Court

Pressure on Nifong in Duke case
Misstatements may cost him his career

Joseph Neff and Benjamin Niolet, Staff Writers

DURHAM - To press forward in the Duke University lacrosse case, District Attorney Mike Nifong must rely on scanty evidence while deflecting serious questions about whether he broke the law or violated the ethics rules governing prosecutors.
Nifong has acknowledged that the case now hangs on what the accuser says from the witness stand in a hearing scheduled for February. Meanwhile, pressure on Nifong continues to build.

The State Bar has received multiple complaints demanding that he be disbarred. A congressman has called on the U.S. Justice Department to investigate him. And when the case returns to court, Nifong might have to explain repeated misrepresentations to judges about what evidence he had and why he did not disclose it all, as state law requires.

Nifong dropped the rape charges on Friday, but felony charges remain pending against three former members of the Duke University lacrosse team: David Evans, 23, of Bethesda, Md.; Collin Finnerty, 20, of Garden City, N.Y.; and Reade Seligmann, 20, of Essex Fells, N.J. They are charged with attacking their accuser, an escort service dancer, at a team party last March.

Nifong did not respond to a request for comment last week, and he declined to come out of his office on Friday when reporters asked him to talk about the rape charge dismissal. He has told The News & Observer that he would not discuss the case outside of court. But on Thursday, he granted The New York Times a three-hour interview, the newspaper reported Saturday.

In May, Nifong gave the defense a 12-page report disclosing that DNA taken from the accuser's body did not match that of any member of the lacrosse team. He did not disclose that DNA from unidentified men had been found on her body and underwear.

In the New York Times story, Nifong acknowledged that he should have turned that favorable evidence over to the defense. And he said withholding that information was an oversight -- he thought he had already turned it over.

That was Nifong's third explanation why he did not turn over the evidence. At the start of a court hearing Dec. 15, he told a judge that the first he knew about the favorable evidence was two days earlier, when defense lawyers filed a motion on the matter.

At that Dec. 15 hearing, a DNA expert hired by Nifong, Brian Meehan, testified that he and Nifong agreed to withhold test results showing that DNA from the unknown men had been found. After Meehan testified, Nifong told reporters that withholding the test results from a written report was a conscious decision to respect the players' privacy rights.

"We were trying to, just as Dr. Meehan said, trying to avoid dragging any names through the mud," Nifong said. "His report made it clear that all the information was available if they wanted it and they have every word of it."

But Nifong has bigger problems than his conflicting statements to reporters.

Since May, Nifong has repeatedly misrepresented his actions in filings and in face-to-face dealings with judges. Nifong has repeatedly said that he disclosed everything about the DNA evidence.

Federal and state law and state ethics rules require prosecutors to hand over all exculpatory evidence -- evidence that might indicate a person's innocence -- in a criminal case. Nifong acknowledged to The New York Times that the DNA tests results were "potentially exculpatory."

The misrepresentations began in May.

ON MAY 18, NIFONG FILED A NOTICE saying he had handed all evidence in his possession to the defense. He knew of nothing else favorable to the defendants, he wrote.

At a hearing that day, he told Superior Court Judge Ronald L. Stephens, "I've turned over everything I have."

But Meehan, the DNA expert, testified Dec. 15 that Nifong knew in April that Meehan's lab had discovered genetic material from unknown men on samples taken from the woman's body and underwear.

ON JUNE 22, NIFONG TOLD JUDGE STEPHENS in a hearing that he and Meehan had discussed only the contents of a report that was turned over to the defense.

Defense lawyer Joseph B. Cheshire V sounded skeptical at the time: "It's very difficult for me, although I take Mr. Nifong as an officer of the court at his word, to believe that there was no discussion at all as it relates to that testing."

Testifying on Dec. 15, Meehan said at least 33 times that he and Nifong discussed the results or agreed to keep them from the lab's final report.

AT A HEARING SEPT. 22, defense attorney Bradley Bannon pressed Nifong for more details of his conversations with Meehan.

Nifong again said they discussed only the contents of the report. "We did not ask any questions because the information was there in the summary [Meehan] had given us," Nifong said. "It was pretty clear. [Meehan] provided that to us. We looked over it. And we didn't have any questions about what was there. There's nothing really to provide."

Superior Court Judge W. Osmond Smith III, who has been assigned to the case, pressed for a clear answer to Bannon's question: "So his report encompasses it all?"

Nifong answered haltingly: "His report encompasses ever -- because we didn't -- they apparently think that everybody I speak to about, I talk about the facts of the case. And that's just, that would be counterproductive. It did not happen here."

Smith repeated his question: "So you represent there are no other statements?"

"No other statements," Nifong said. "No other statements made to me."

ON OCT. 27, SMITH SIGNED AN ORDER THAT STATED: "Mr. Nifong indicated that he did not discuss the facts of the case with Dr. Meehan and that Dr. Meehan said nothing during those meetings beyond what was encompassed in the final report of DNA Security, dated May 12, 2006. The Court accepted Mr. Nifong's representation about those meetings and held that there were no additional discoverable statements by Dr. Meehan for the state to produce."

These in-court statements crumbled on Dec. 15, when Meehan testified that he discussed the results with Nifong and they agreed to withhold them from the report. "We agreed with Mr. Nifong that we would report just the stuff that matched so that it would, so the report was limited in its scope," Meehan said.

The delay getting the information to the defense probably won't have much impact on the charges, said Richard Myers, a former federal prosector and assistant professor of law at the UNC-Chapel Hill School of Law. A judge would have to consider whether the delay was harmful to the defense; the likely remedy would be to give the lawyers more time to prepare for trial.

But Judge Smith may consider whether Nifong intentionally misrepresented his actions. Lawyers have a duty to be honest with the court, Myers said.

"The judge is going to have to decide for himself -- 'Has he been truthful with me, and was it an honest oversight?' " Myers said.

The judge could hold a lawyer in contempt, refer the matter to the State Bar or remove a prosecutor from the case for an actual conflict of interest, Myers said.

Meehan hired a lawyer to defend the actions of his lab. In an interview, the lawyer, Fred Antoun, said the defense lawyers were wrong to demand a report with all results included. The results could be found in the roughly 1,800 pages of technical documents that a judge ordered them in September to produce; the defense received them in late October.

"That is a childlike complaint," said Antoun, who practices in Pennsylvania and Washington, D.C. "The DA did hand it over; it just wasn't written in moron talk."

Antoun defended Meehan's partial report on several grounds: Reporting all the tests would result in a massive report that no one could understand. It would violate the privacy of the players, whom Antoun kept referring to as "soccer players." And listing all the test results would sully the reputation of the accuser, he said.

Antoun is not licensed to practice in North Carolina, where the law requires experts to write up a report of any test they perform.