INNOCENT: Nifong Trial (Post 1)

"... these three individuals [David Evans, Collin Finnerty and Reade Seligmann,] are innocent of these charges."

North Carolina Attorney General Roy Cooper, Apr. 11, 2007
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KC Johnson is live blogging the trial. He’s providing real time reporting and commentary. Keep checking in with him.

I watched this morning session of the trial on Court TV. Overall, not a good morning for Nifong.

To use a football analogy, if you think of this morning as the first down, Nifong and his attorney Freedman go into the afternoon session at 2nd down and 26.

Freedman’s opening statement had problems that reveal the weakness of Nifong’s case rather than Freedman’s skill as an attorney.

What Freedman said was well-presented but it amounted to a mixed salad of defenses to which he added a sympathy dressing.

So we got blaming of the police, media, DNA expert Brian Meehan, Nifong’s inexperience as a DA, etc, etc. To that Freedman added a strong reference to Nifong’s prostate cancer in the late 1990s, which the public has since been told he’s now free of.

For Nifong, one problem with Freedman’s statement is that it amounts to: “Yes, all those things happened, but they were everyone else’s fault. And did you know my client’s been a sick guy?”

A much bigger problem for Nifong is that Freedman’s statement is probably that best defense he can mount for. Don’t expect any “smoking guns” from the defense table. Freedman, IMO, fired his best shots this morning.

I thought the Bar Counsel Jean was a pedestrian presenter and questioner with a very strong case, because so much of the evidence she was discussing is what attorney’s call prima facie or self-evident: tapes of his inflammatory statements, testimony recorded in court, etc.

But as I watched Jean I kept saying, “I sure wish Joe Cheshire or Brad Bannon or Wade Smith were prosecuting Nifong.

I sort of got my wish when Wade Smith was called as the first witness by the Bar.

That was a very smart move. Smith is very well known and respected by NC attorneys. His testimony, which so far has been devastating for Nifong, is sure to resonate with them. First impressions, lasting memories.

The Bar surely knew that as a trial court veteran known for his calm and impressive manner who would be testifying about matters he knew intimately, Smith’s testimony would set a very high bar (no pun intended) for Freedman and Nifong to hurdle.

The Bar was right. When a tape of Nifong last spring laughing in court at a request by Reade Seligmann’s attorney, the late Kirk Osborn, for bail reduction was shown, Smith was the perfect witness to have on the stand.

I thought the Bar and Jean’s most effective moment came when she asked Smith if in all his years of practice he’d ever encountered a prosecutor who’d acted as Nifong did.

Smith paused as if trying to recall and then said, “No.”

In terms of influencing public opinion, Nifong hurt himself this morning even as he said nothing. He appeared very uncomfortable. He blinked a lot. His facial muscles twitched. He often rubbed his hands to his mouth.

One irony: many of the camera shots of Nifong showed the courtroom audience. And who should appear just above Nifong’s right shoulder? Brad Bannon, the defense attorney whose diligent work uncovered the exculpatory DNA evidence Nifong withheld.

Biggest news item of the morning: In Jean’s opening statement, as reported by KC Johnson:

before April 17, Himan speaks to Nifong--Himan expresses grave concerns about going forward with indictments of Seligmann and Finnerty--Nifong says to go ahead anyway, even though the police had no evidence that Seligmann was even present. Himan goes to superiors to express concerns--they go to Nifong--Nifong overrules them.

That’s going to reverberate again and again in the days, weeks and months to come.

Later tonight or tomorrow I‘ll say something about Smith’s testimony concerning the atmosphere outside the courthouse on May 18 and then within the courtroom. At both places Reade Seligmann was subjected to shouts of physical threats, including death threats in the courtroom, before the judge entered it.

What I saw of Smith’s testimony on this matter (Court TV cut away during part of it) was extremely powerful as indicating the kind of atmosphere that Nifong helped create and did nothing to condemn.

More on the trial this evening.