Late one night, my telephone rang, and on the other end was a high-profile criminal defense attorney with whom I have worked on gang cases and other kinds of juvenile justice proceedings. He said he had to meet me for lunch the following day. He explained he had an “urgent need” to pick my brain about controversial ex-district attorney for Durham County, North Carolina, Michael Byron “Mike” Nifong. A one-man perfect storm, Mr. Nifong is best known for his own thirty-four high crimes and misdemeanors in his 2006 prosecution (on rape allegations) of players on the Duke University lacrosse team. For months he garnered national headlines, culminating, in the end, in his fall from grace and the revocation of his license and disbarment, on June 16, 2007, by the state bar association.
Apart from the plethora of state bar allegations and the criminal charges against him, press accounts of Nifong’s very public behavior include placing persecution before investigation; jumping to false conclusions; improper self insertion into lineup procedures; conduct unbecoming a District Attorney by temper tantrum and foot stomping; menacing by verbal assault; inciting racial and social division in the community; electioneering; misappropriation of public trust; indecent exposure of Durham County to civil lawsuits; hijacking the District Attorney‘s office for his own personal fiefdom; and incompetence.
The attorney on the phone and I agreed on a time and place to meet for lunch, the following day. When we ended our conversation, I returned to watching “Shark,” the hit television show starring actor James Woods as a prosecutor who, in his obsessive desire to win at nearly all costs, frequently bends the law with his brand of Cirque du Soleil- like hijinks. During a commercial break, I pondered what “urgent need” the attorney wanted addressed. What I kept replaying, in my mind’s ear, was his last statement: “I know I said I want to pick your brain about former D.A. Mike Nifong. But what I really want to talk about are the roles and responsibilities of expert witnesses when hired by a prosecutor—especially a fire-breathing dragon like Nifong.”
It has been documented by the press that Mr. Nifong’s extraordinary actions—he is said to have committed over 50 various violations of law but charged with 34—even gave birth to a new term in the legal lexicon: “Nifonged.” The Washington Post Writers Group columnist Kathleen Parker, who coined this neologism, says, "Now we can 'Nifong' someone when we want to trump up criminal charges based on flimsy evidence allegedly for political purposes. In short, when we want to screw up someone's life." Said another way, the other side of the prosecution’s double-edged sword is burn-’em-at-stake PERSECUTION come alive and unbound—rampant, relentless, reckless, Draconian, unlawful, and uncontrollable.
The Expert’s Ethics
The anxious attorney and I met for lunch the next day and had a long talk. In the Duke University Lacrosse rape case, the designated expert witness had presented his report and opinion that the DNA evidence showed what he defined as “several other men” sexually involved with the purported victim of rape, none being any of the Duke University lacrosse defendants being tried by Prosecutor Nifong. The DNA from the Duke defendants on trial did not match the DNA “evidence” said to have littered the alleged rape victim. “Aren’t expert witnesses, like lawyers, regulated by a state board or commission?” the attorney asked me. “No, not exactly,” I replied, thinking he already knew the answer to that. He frowned, paused and then continued. “What, then, ought to compel an expert witness to blow the whistle on a prosecutor suppressing and concealing exculpatory evidence, like Nifong did?” I told him that an expert witness is not obligated to report a suppression-of-evidence crime he feels a prosecutor has committed and thus protect the right to a fair trial of the defendants. “Shouldn’t the expert have confronted Mr. Nifong and insisted he publicly disclose the exculpatory evidence the expert had discovered?” No, I said. It has yet to be established that the expert witness even knew District Attorney Nifong had suppressed the exculpatory evidence. It was the press corps that sounded the alarm about Nifong’s crime, when reporting his parade of other illegal acts. Prior to the blaring press headlines, what and where was the expert’s proof of Nifong’s evidence tampering, assuming he even had reasonable doubt about Nifong’s lawful handling of the exculpatory DNA evidence?
What Did the Expert Know and When Did He Know It?
Ex-District Attorney Nifong, in addition to having already been disbarred, will be tried in court for, ironically, a boatload of more felonies than those for which he wrongly prosecuted the innocent Duke Lacrosse defendants. As we lunched, the attorney allowed as to how it could well be that Nifong’s expert witness may be subpoenaed to testify about what he might have known about Nifong’s suppression of the exculpatory evidence the expert handed over to him, how he felt about it, and why he never came forward to report Nifong’s actions. I reminded the attorney that such examination, of course, would improperly put the expert on trial. The expert would be between a rock and a hard place and even assaulted with the question, “Why didn’t you know, and in what ways were you ignorant, about the prosecutor’s suppression and concealment of the exculpatory evidence that you gave him?” Nifong’s expert witness, like most expert witnesses, probably presented his report and opinion and, having thus discharged his designated and limited duty—he apparently was not asked (allowed?) by Nifong to testify in court—took a hike, knowing absolutely nothing of Nifong’s intent to suppress and conceal the exculpatory evidence in the report that would have freed the Duke defendants.
For Whom the Bell Tolls: When to Blow the Whistle
We spent the remainder of our lunch meeting discussing whether Mr. Nifong’s expert witness ought to have confronted Mr. Nifong and demanded that he publicly disclose the contents of the suppressed evidence. Consider this: wouldn’t such a strategy (a) suggest the expert knew and could prove that Nifong suppressed the evidence? and (b) place Nifong in a position of admitting both failure to exercise due diligence and belatedly (not to mention embarrassingly) disclosing his possession of exculpatory evidence? As a hypothetical, let’s say the expert knew that Mr. Nifong hid the exculpatory evidence under lock and key, which in fact Nifong did. Should the expert have confronted Mr. Nifong about the district attorney’s legal obligation to disclose the evidence? What if Nifong denied concealing and locking up the evidence? What if, angered, afraid and feeling intimidated, he threatened the expert, physically, called the Bailiff to arrest the expert, or vowed to destroy his career?
As a whistle-blower, what further recourse would the expert have had—the Judge? The Grand Jury? The State’s Attorney? What power does an expert witness have against an omnipotent district attorney whose use, mis-use and non-use of experts he can manipulate for his own ends? With a stroke of his pen, a prosecuting district attorney can delete—for any reason or simply no reason—any expert from his Witness List. In baseball, a feared hitter is thrown “balls” by the pitcher and given a free pass to first base. In the prosecutor’s office, a feared or unfavorable report written by the designated expert can send the expert home on a free pass and bury his report in the bottom drawer in the back of the prosecutor’s remote file cabinet or in the bowels of the basement archives.
These are complicated issues that immediately, if hypothetically, pit the expert and the prosecutor against each other, as dueling adversaries. Equally important, in the day-to-day, court-by-court trial testimony framing an expert witness’ work, there is infinitely more that an expert does not know about a case. This “case fog” (general or specific case ignorance, privileged closed-door discussions, negotiated deal-making) simply dwarfs the expert’s knowledge about his or her limited designation and opinion. Recently, I was an expert for the plaintiff in a personal injury lawsuit against a school district. During my deposition, the defendant-school district’s lawyer (Jeffrey Carlson, senior partner at Carlson, Messer, and Turner Law Group, Los Angeles), by way of countering and refuting an objection made by the attorney who hired me, turned to me and said, “Jim, you are not an attorney. There is so much about the case that you don’t know, case dynamics and the like, conversations in the law office, decisions, matters of discovery, and so forth to which you were not privy.”
Impact on the Expert’s Career
The attorney then asked me what professional or selfish concerns might impede or dissuade an expert from coming forward and blowing the whistle on a prosecutor he knows has concealed exculpatory evidence. Who, in the legal community, might resent an expert’s “brass balls” and Boy Scout zeal, and could therefore hurt the expert? I replied that the presiding question that ex-district attorney Nifong’s illegalities compel us to address is, who does an expert witness really work for? The judge of the court? The hiring attorney? The people of the state? The defendants on trial? The victims seeking redress? Or the plaintiff? Expert witnesses do not get paid for snooping around to verify whether and how their reports and opinions are being used. Who can say that Nifong’s expert should have followed up and investigated whether his unwanted evidence and exculpatory opinion would actually be used to free the innocent Duke Lacrosse defendants? In Los Angeles, California, music mogul Phil Spector is on trial for murder. His defense lawyer claims that the prosecution’s expert witness removed the murdered victim’s artificial, press-on fingernail from the carpet, evidence the defense claims would show that the victim handled the very gun that killed her. The defense’s expert witness, Dr. Henry Lee, a renowned national figure, in a spirit of revolt, said he would not return to court to be grilled by the district attorney. Expert witness flare-ups are rare. And defendant Phil Spector’s expert witness’s fury made headlines. We cannot afford to disregard the potential grief the Durham, County North Carolina expert would have spared the Duke Lacrosse defendants on trial and, equally important, how much money the state would have been saved if the expert had been able to come forward and blow the whistle on ex-district attorney Mike Nifong.
Justice at Last…or Just Delayed?
Ex-district attorney Mike Nifong went after the Duke Lacrosse players with unbridled vengeance, uncommon glee, and an unwholesome and rabid prejudice that knew no bounds. Regardless of the psychological framing of his actions (fortification of his political and personal agendas), he was a runaway train whose nearly forty counts, for illegal acts, now pending against him showed him to be more a persecutor who deliberately stacked his case and trampled the rights of the accused, and less a prosecutor discharging his legal obligation to uphold the law in the prosecution of the Duke University lacrosse defendants and their the right to a fair and decent trial. Despite his acts, it’s doubtful he will get a taste of his own medicine (“Nifonged”) in court. Indeed, he will receive a more fair and humane and decent trial in a court of law than he accorded the Duke Lacrosse defendants. Arguably, in some minds there is a fundamental unfairness about that, akin to suffering in luxury.
An expert witness can often be controlled and corralled—especially by a prosecuting district attorney who is drunk with his own hubris and driven mad by his premeditated goals for using a particular court case and its outcome to launch or solidify his personal and political career objectives. In such a prosecutor’s mind, “damn the evidence” becomes his mantra. To Nifong, the exculpatory DNA evidence in his hand seductively meant “Do Not Announce.” Unfortunately for the defendants on trial, he regarded his own expert witness as just another easily-dispensable player on his field of dreams.
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