Senator Joseph McCarthy persecuted communists; Pharaoh Ramses II persecuted Hebrews; and District Attorney Mike Nifong, well…he persecuted traffic violators. Until, that is, he set his sights on Duke lacrosse players.
In the months after he decided to prosecute the lacrosse players, Nifong managed, like McCarthy, to work himself into history books. His actions have been scrutinized by everyone from scholars to hairdressers.
But long before Nifong’s name was used in law classes and judicial decisions, he was nothing but a number-two dog. He worked in the shadows as an assistant DA for twenty-seven years, never having the drive to fight for the number-one spot. When his superior stepped aside in 2005, Nifong accepted the chance to be the Alpha male. Unfortunately, he proved he was incapable of leading the pack.
“Traditionally he’s always been number two in a sled dog crew,” said Butch Williams, a longtime defense lawyer in Durham. “When Nifong became number one, he still thought like number two. He didn’t know how to navigate those curves and took the sled right over the hill.”
Williams has worked with prosecutors for nearly three decades, representing more than eighty-seven murder, rape, and drug defendants. He considered his relationship with Nifong to be cordial. He even supported Nifong in his race for district attorney. Williams was hired to defend lacrosse player Dan Flannery in the period when all forty-six white players were considered suspects. During that time, he attempted to reach out to his friend Nifong in an effort “to keep him from going someplace he shouldn’t go.” Williams and two other lawyers asked for an appointment to see Nifong and present him information that had been gathered about the alleged victim and that they knew to be true about the players suspected.
Sitting in his office opposite the three lawyers, Nifong put his hands over his ears and in a move straight from kindergarten, he repeated, “I can’t hear you, I can’t hear you.”
Mike Nifong may have been the DA, but he was still acting like the number-two dog he always had been. And he was taking a whole sledful of people over the cliff with him.
Nifong was born in the quaint southern beach town of Wilmington, North Carolina. Growing up, he was a nondescript student, never standing out unless he was being picked on. Wilmington was a tight-knit community, but his peers, who walked the same hallways at New Hanover High School, don’t seem to remember many details about him.
After graduating high school in 1967, Nifong attended the University of North Carolina at Chapel Hill. His parents were both Duke graduates, so after they had raised their son as a Blue Devil, one can only imagine how they felt when he became a Tar Heel. The rivalry between the two schools is so intense that entire bookshelves have been filled by tomes on the hatred. Nifong was awarded the Herbert W. Jackson scholarship, which traditionally is given to fewer than twenty students a year. He was accepted into Phi Beta Kappa, an honors society whose members include seventeen U.S. presidents (though the society’s website doesn’t mention Nifong among its “memorable members”).
He earned his bachelor’s in political science from UNC in 1971, then took a job in Southport as a mathematics teacher and a boys’ physical education instructor. Southport was less than an hour away from where he grew up. After a year he left his teaching career and returned to the comforts of his hometown, working three years for the New Hanover County Department of Social Services. The typical Phi Beta Kappa doesn’t return home after college to work in a low-paying public service position, but Nifong’s life was not marked by many moments of greatness.
Nifong had said from his days in high school that he wanted to become a lawyer, a dream that may have been sparked by one of his favorite books, To Kill a Mockingbird by Harper Lee. The irony behind this would catch up to him later in life. Finally, in 1975, Nifong returned to the University of North Carolina Law School. Though there is no record of the fact, rumor has it that he applied to Duke but was not accepted, which some have said would explain his animosity toward Dukies. He graduated law school and was admitted to the North Carolina Bar in 1978.
Even with a law degree, Nifong could not find a job. He took a volunteer position with the Durham district attorney’s office. Traditionally, UNC law grads seeking a job in litigation don’t have to look hard to find work, but nothing of Nifong’s career was typical.
Shortly after Nifong began his volunteer work, then District Attorney Seth Edwards found a way to pay him on a full-time per diem basis. From that moment on Nifong found his comfort zone. In time, his long-term service earned him the spot as chief assistant DA, and he was content to retire there.
“He grew up in Wilmington, the same town as my husband did,” Raleigh News & Observer columnist Ruth Sheehan said. “My husband’s older sister was in some classes with him in high school. They know the family because one of my husband’s best friends was married to Susan Nifong, his sister. So though I had no direct experience, I knew a little bit about his family through that. I think it was stunning to those that knew him that he would pull all this [in the lacrosse case]. It seemed very out of character because he has always been sort of the behind-the-scenes guy. Some of these guys are big for wanting the headlines. And he was not one of those.”
As time went on, Nifong built a reputation as a competent if unspectacular lawyer. He settled in as a government lawyer where hours don’t have to be billed and client development is simply a matter of reading the police blotter. He developed a legendary foul mouth that made many a coworker blush.
Outside the district attorney’s office Nifong liked to portray himself as a family man. He has been married twice and has two children, one from each marriage. His daughter Sarah lives in Charlotte, North Carolina, and his son Bryan is still in high school. He has been involved in youth baseball for over three decades, umpiring even after his children were grown. His current wife, Cy Gurney, works as a regional coordinator for the Guardian Ad Litem program, which serves as an advocate in the courtroom for abused and neglected children.
In 1999 Nifong received horrible news when he was diagnosed with prostate cancer. He took some time off for treatment, receiving surgery, radiation, and a year of hormone therapy. When he returned to work he requested easier, less stressful cases and despite his position as the first assistant district attorney, he asked to work traffic court. He spent the next seven years negotiating DWIs and speeding tickets. He refused to go into a courtroom, so he negotiated with lawyers in an office down the hall from Freda Black, the next most senior assistant DA. Black agrees that traffic court was an odd job for someone of Nifong’s tenure and salary, but no one was going to come out and say anything, because people understood his health concerns. Of course that didn’t keep people from talking.
“A lot of people thought he was being paid too much money to negotiate traffic tickets,” Black said. He was making $106,397 a year before he was appointed district attorney. Yet Nifong had served his time, so others didn’t voice their concerns.
During his career Nifong was compared to a pit bull, because once he latched on to something he was not going to let it go. He was ruthless in and out of the courtroom. His unwavering convictions drove him to pursue cases that did not have enough supporting evidence. “He had a certain manner about him that was different than others,” Black said. “He didn’t really like to prepare very much for a case, he found it to be thrilling to just sort of go and do it off the cuff.”
It may be thrilling to pursue a legal case off the cuff, but it often left Nifong in the dark about the hard facts that pertained to cases. The Raleigh News & Observer, in a profile of Nifong’s legal career, detailed several stories to back Black’s claim.
In 1994 Nifong was the prosecutor in a controversial rape case. As with the Duke lacrosse case, Nifong expressed complete confidence that a rape had occurred even though the testimony had many contradictions. And as in the Duke case, all Nifong had was the word of the woman. The defense had actual evidence that a rape did not occur. When the defense asked to delay the trial date Nifong called them “a bunch of chickens,” a comment that highlighted Nifong’s admitted cockiness. The defendant was Timothy Malloy, a man who worked as a prison guard and a convenience store clerk.
In 1992 the accuser was out partying and drinking with two of her friends when she was left behind at a bar. She walked to a convenience store where Malloy was working to use the phone to try to contact her friends. Despite her multiple attempts she was unable to reach them. After the accuser and Malloy spent time chatting, Malloy propositioned the women to have sex in the storage room. Malloy admits that they had sex, but claims it was not forced.
The accuser called police and reported she was raped, claiming Malloy pulled a gun from his waistband and held it to her head while he raped her both vaginally and anally.
The defense attorneys showed many inconsistencies in the accuser’s statements. The first contradiction was in the medical report. It stated that there was no physical evidence consistent with someone who had been anally raped. Another point the defense made was that Malloy could not carry a gun in the flimsy waistband of the sweat pants he was wearing. Then there was the fact the police never found the weapon even after an extensive search of the convenience store and Malloy’s car. Also, a newspaper deliveryman testified that he saw the accuser and the defendant talking and he thought they were good friends. Finally, after allegedly being raped, the accuser invited Malloy to come see her at the topless bar where she served drinks.
Despite Nifong’s unwavering conviction that Timothy Malloy was guilty, the jury found him not guilty. After the case Malloy told the News & Observer, “I guess once Nifong sets his mind that he’s going to prosecute, there’s nothing you can really do. What could you do?” This was the last rape case Nifong handled until the Duke lacrosse case.
Nifong’s lack of preparation and research on cases was overshadowed by his intense and sometimes outrageous courtroom tirades. In 1995 he prosecuted Walter Goldston, who was accused of killing a convenience store owner. Nifong sought the death penalty. Brian Aus was one of Goldston’s attorneys who was taken aback by Nifong’s unusual tactics during his closing argument. “Nifong started talking to the jury about the angles of the bullets,” Aus recalled the incident to the News & Observer. “The state believed the defendant fired as he lay on the floor. So Nifong said, ‘Well I hate to do this in a suit.’ He then flopped on the floor to depict the shooting.” Nifong’s demonstration helped to convict Goldston.
Despite all his experience in the courtroom, Nifong was still unknown to the greater population. Among other attorneys he was not remembered for his courtroom achievements; instead, when asked, what people remember most about him seems to be his ferocious temper and unpredictability.
Even after requesting a transfer to the more mundane life of traffic court, Nifong maintained his outrageous behavior. Attorneys would anxiously wait outside Nifong’s office to negotiate their clients’ traffic violations. Often they could hear through the walls as Nifong ripped someone a new one. On October 1, 2006, the News & Observer interviewed attorneys about Nifong’s vicious personality. “Working with Mike, you never knew from one day to the next who you would be dealing with,” said Glen Grey, a lawyer who handled a high volume of traffic cases. “He would curse you, scream at you, and call you names over nothing.”
“He’ll go off on you like that,” said Aus, the veteran lawyer who has known Nifong for two decades. “He’s the first one to tell you, ‘Don’t bother me right now, I’m not in a good mood.’”
“I have seen him lose his temper and berate attorneys in an unprofessional manner,” Scot Holmes, a respected Durham lawyer, told the newspaper.
Freda Black, who worked just a few feet away from Nifong’s office, recalled one memorable incident. In late February 2005, just months before Nifong was appointed district attorney, a man came into the office during Nifong’s lunch break. Every day Nifong would take lunch from one to two o’clock. He would pop some popcorn and lock himself in his office, usually to play solitaire on his computer. He didn’t like to be interrupted.
“Well this day, after Nifong had locked his door, this man came in the office to speak to someone about a speeding ticket his child had received in the Durham area,” Black remembered. “The gentleman was from Chicago and wanted to see if anything could be done about the ticket before he left to go back home. This way they wouldn’t have to travel all the way back to North Carolina to dispute the ticket on the assigned court date. Nifong was the only person who handled traffic tickets, and his secretary knew not to bother him during his lunchtime. The man pleaded with her, asking to talk to somebody, so she gave in and interrupted Nifong. Nifong stormed out of his office and pulled the man to the lobby, where everyone could see and hear them. The man explained his situation to Nifong; he just wanted somebody to look at the citation. Nifong wanted nothing to do with him and said, ‘I’m busy; you need to get a lawyer.’
“The father persisted, saying he thought it was a simple matter that could be resolved without people traveling long distances to come to court. This sparked an argument between the two men. Nifong ordered the man to leave or he would call the sheriff ’s deputy and have him removed from the building for trespassing. That’s when the man demanded, ‘What is your name and what position do you hold in this office, because I’m going to look further into this?’ Mike replied with, ‘My name is Mike Nifong and I’m the Chief Asshole of the Durham County district attorney’s office.’
“The man looked at Nifong and said, ‘That is the only thing you have said that I completely agree with.’ He turned around and stomped out of the lobby. There were many witnesses to the incident and it became an ongoing joke that Nifong was the ‘Chief Asshole’ and he enjoyed the title.”
Nifong was not about to cut anyone a break in traffic court, not even a fellow district attorney. Brad Crone, a political campaign consultant who has helped many Democratic political candidates in North Carolina, recalls how one of his clients, District Attorney Seth Edwards, had a similar experience with Nifong. Edwards’s niece had received a speeding ticket in Durham, so he called Nifong to see if he would reduce the ticket to the lowest unit rate. This is not an uncommon request, and it would not have been too great an imposition to reduce the ticket so there wouldn’t be as many points on her insurance.
Instead, Nifong told his fellow district attorney that his niece had better hire an attorney and show up in district court. Edwards was astonished that Nifong was unwilling to extend the courtesy.
Nifong’s pit bull attitude intimidated some, but many local attorneys saw him as a bully and a coward. Joe Cheshire saw through Nifong’s intimidation. He represented David Evans, the lacrosse team cocaptain and the third player indicted for rape. Nifong was not too fond of Cheshire because the defense lawyer was so willing to call someone out for their actions. While working Evans’s case, Cheshire went to see Judge Ron Stephens for a scheduled meeting. He showed up and got off the elevator to find two women in the lobby who were extremely shaken. The women were Kerry Sutton, another defense lawyer working the lacrosse case, and the judge’s secretary, who is an older African-American woman.
Cheshire, seeing how troubled the women were, walked up to them and asked, “What’s wrong?” According to Cheshire, the women replied, “You wouldn’t believe what just happened…Mike Nifong just came up to us and just started screaming and yelling. He was using the f-word and shouting at the top of his lungs that he was going to cut off your balls and shove them down your throat.”
Cheshire was not sure what prompted Nifong’s tirade so he turned and walked down to Nifong’s office. He could see Nifong in his office, so he told Nifong’s assistant, “I understand Mr. Nifong has some kind of problem with me. If he’s got a problem with me I would appreciate if he’d see me face to face rather than yelling at ladies in the hall.” His assistant went into his office and came back out and said, “Mr. Nifong won’t see you.”
Cheshire is five-nine, sixty years old, and weighs 175 pounds. He’s not a terrifying figure by any means, but Nifong refused to come out of his office. “He didn’t have the nerve to say anything to my face,” Cheshire said. “He’s a bully and a coward.”
On April 18, 2005, Governor Mike Easley appointed Nifong as the Durham district attorney when Jim Hardin became a judge. Nifong was sworn in on April 27, and on April 28 the first thing he did was change the letterhead and force Assistant DA Black to resign. Black, a single parent who had worked in the DA’s office for more than fourteen years, was told by Nifong that if she signed the resignation letter and left quietly she could receive one additional month’s pay. Like any single parent looking out for her children, Black signed the letter and packed all the things in her office. She left without a fight and without an explanation.
“He told me if I kept my mouth shut, he would quote, ‘Pay me for another month so you can feed your girls,’” Black said. “He knew what I would do.”
Nifong was finally the number-one dog and, as “Chief Asshole,” he could do as he pleased. Nifong is “aloof, arrogant, and very standoffish. He’s not the type of guy that you would want to go to have a beer with. And he enjoys being a prick,” said Crone.
These personality traits, combined with his inability to admit it when he is wrong, would be Nifong’s undoing. As Butch Williams said, “Nifong didn’t know how to be a true leader.” The Duke lacrosse case was Nifong’s chance to step out of the shadows and prove to the world that he was number one.
Instead it shone light on all his worst characteristics.