Brocker: The violation of the rules is not in question. There’s a different standard when making misrepresentations on someone else’s knowledge and based on your own knowledge. Says it is undisputed that Nifong violated this rule.
Says there were repeated efforts to get full discovery and each time he said there was no other information. He had the duty to investigate to find out if there was or was not any additional information. Nifong’s own testimony shows he misrepresented. The question is, was it intentional. If so, that would be an aggravation of this rule that he has already clearly violated.
Williamson: Questions about what “knowingly” means in this instance. Brocker: These were false representations based on his own knowledge, personal assertions of personal knowledge facts. A lawyer shouldn’t be able to hide behind the fact that he didn’t do something to verify before making that statement. He sat down three times with Meehan and was told about this information.
Brocker: Says Nifong said at the Dec. 15 hearing, “This is the first I’ve heard.” Nifong never in that hearing acknowledged that he knew about these results and was appalled that they weren’t in the material. He didn’t say “Oh, my goodness” that he said they were there and then learned they weren’t. He made no corrective comments to the court.
Williamson: How do you respond to the argument that it was all in the 1,800 pages so he gave it to them?
Brocker: The fact that they got the info and figured it out on their own is not enough. He made a false statement to Judge Smith about it. Williamson: Not sure that was responsive. What if he thought that they had it because it was in the 1,800 pages and he was saying this was the first he’d heard they were complaining about it?
Brocker: That’s not what Nifong has said happened. it’s not what he said to the Grievance Committee.
Williamson: Maybe he was “besieged and feeling prickly.” Can’t this be interpreted that “this is the first time I’ve learned they are alleging I did something wrong”?
Brocker: From the context and the comments that’s not what happened that day. Points out that there’s nothing in the transcript where he defends himself for deliberately withholding information, if that’s what he thought was happening.
Brocker continues. Points out the unusual interest Nifong took in the DNA results. Called SBI almost daily and had three meetings with DSI. He’s admitted that he got the report and it contained positive matches. He said he told Meehan to put everything in the report and told him to make it like an SBI report, which lists all non-matches and matches, and no conclusions. But the DSI report is nothing like that.
Brocker cites inconsistent media statements by Nifong regarding the exculpatory nature of the missing information. Also points to inconsistent statements about what he told Meehan to do. Says positive results are not the same as positive matches and Nifong uses these interchangeably.
Brocker: To believe Nifong you have to disbelieve what numerous witnesses have said. Evidence proves these representations were not only false but intentional.
Taking a five-minute break.
