Nifong's Attorney Responds to Critics

Published April 13, 2007

| FoxNews.com

This is a partial transcript from "On the Record," April 12, 2007, that has been edited for clarity.

GRETA VAN SUSTEREN, HOST: I'm sorry. That bombshell served today from DA Mike Nifong. The Durham DA handed reporters a statement saying in part, "To the extent that I made judgments that ultimately proved to be incorrect, I apologize to the three suspects that were wrongly accused."

The statement, of course, comes one day after the North Carolina attorney general said all three are innocent.

But Nifong's hot seat is hardly cooling off. Nifong still faces ethics violations, and many want him disbarred.

So what does Mike Nifong have to say about it? Joining us, his lawyer, David Freedman. Welcome, David.

DAVID FREEDMAN, MIKE NIFONG'S ATTORNEY: Good evening from Winston-Salem, Greta.

VAN SUSTEREN: David, nice to see you. How is your client taking all this?

FREEDMAN: Well, on the one hand, he's fine with the fact that charges have been dismissed. You alluded to the press release he received today. He had said all along, once he recused himself and turned it over to the attorney general's office, he knew they would give it a thorough investigation and would be fine with whatever decision they made.

He's fine. He feels they've made the correct decision, and he feels good about that.

He does take some affront at some of the personal comments made about him.

VAN SUSTEREN: All right. I want to talk to you about the statement. First of all, did you — did you work with him on the statement, or is this something that he did himself?

FREEDMAN: This is something — I was aware of it before it was released, but this was written by Mr. Nifong.

VAN SUSTEREN: Here's the problem I have with it. You know, it supposedly, you know, it seems to be an apology. But I'm not sure, David, that he really gets it.

Let me read you just part of it, part of the statement. Here's one point. It says, "Obviously they," meaning the North Carolina attorney general and his assistants, "have had access not only to all the evidence that I had, but also to additional evidence that I have not seen, which they developed during their 12 weeks of independent investigation. I have every confidence that the decision to dismiss all charges was the correct decision based on that evidence."

What that part of the statement of Mike Nifong seems to say is that the North Carolina attorney general dismissed it because he had something he didn't have, that Nifong didn't have. Any idea what that could be?

FREEDMAN: Well, except we don't actually know what the attorney general had. We have not seen the report. We have not been part of the decision-making process.

He met with the attorney general on one or two occasions. I believe the attorney general met on several occasions with the accuser in the case. I don't know what else they developed. We don't know what they had.

All we know is whatever they determined was there or was not there — in this case they determined, I believe, the attorney general said that the three boys were innocent, apparently was the correct outcome.

VAN SUSTEREN: Well, what did your client have? What did Mike Nifong have that convinced him that this case should be brought and should be — not only be brought, but indicted and then dragged on until yesterday?

FREEDMAN: Now, I was not involved, obviously, with the criminal process. And I have limited my involvement to the state bar. It is my understanding what he had was information that was developed by various investigators, the statement of the accuser, you know, I've not — I've not had privy nor is it my intention to look through all the discoveries to see exactly what he had or didn't have. He at least had enough evidence that developed between the prosecutor — the investigators and the accuser...

VAN SUSTEREN: I guess what I mean — here's the problem — is that I don't know what evidence this is. And that's the thing that's most troubling to us, because we've seen the discovery. We know he didn't talk to the accuser about the events of that night. We know — you know, and so it's hard to know what the evidence is, because nobody else has seen any evidence.

FREEDMAN: Well, again, you have the accuser's statement. He may have — the accuser may not have made the statement to Mr. Nifong, but did make it to investigators. And there are cases in North Carolina, I'm assuming other states, where they had been indicted based upon what the accuser said, and no physical evidence substantiating what the accuser said. Because once the accuser makes that statement, it's sufficient to go to the jury.

Now clearly in this case, the accuser, once — as the case went on, gave so many different forms of that statement that it was clear she had no credibility. My understanding there were other issues with her as well. The attorney general believes that not only was it not sufficient to go to the jury, but they didn't — I don't believe they believed her.

But that's not to say — apparently there was enough evidence, at least the investigators felt based on what she said, to get a grand jury indictment.

VAN SUSTEREN: Well, except that, you know, we can't — we can't even test that. We don't even know what they said before the grand jury, because your state — which is not your fault, or DA Mike Nifong's — is that there is no record of a transcript.

Let me ask you about another part of his statement today. This reads in part, it says: "At the same time, we all know that no system based on human judgment can ever work perfectly. Those of us who work within that system can only make the best judgment we can based on the facts available to us."

Does your client have an explanation as to why he didn't even talk to the accuser about the events that night? Because it's hard to exercise judgment if you don't go out and get the facts.

FREEDMAN: Well, but if you have investigators, you have — you believe in to get the facts. Part of the problem Mr. Nifong was concerned about was that if he met with the — rightfully or wrongfully — he felt if he met with the accuser, it potentially makes him a witness in the case.

VAN SUSTEREN: That's absurd.

FREEDMAN: And potentially create a conflict from that.

VAN SUSTEREN: That — you're a nice guy, David. But, David, that's absolutely absurd. Prosecutors have to meet with their witnesses and their complaints. That's absurd.

FREEDMAN: That's correct. But there's a recent case that just came out, out of the court of appeals several weeks ago — and I wish I could remember the name, I'm sorry — I tried — I should have looked at it today — where it said now that prosecutors need to make — memorialize their investigations when they talk with someone, they need to take notes. And the...

VAN SUSTEREN: He could have done that, then? Why didn't he do that?

FREEDMAN: Hold on. Let me finish. Just show you that I'm being completely — I don't think I'm being absurd. The dissent in that case, I believe, raised the issue, because of that, the prosecutors potentially become witnesses in the case and it could create some conflicts down the road. So I don't believe I just speak for myself or for Mr. Nifong when I make that point.

VAN SUSTEREN: David, you are a very nice guy. I think you have got a tough job ahead of you, you know, fighting this. And I certainly appreciate you coming and joining us. And I do hope that you come back and we'll continue to follow this. Thank you, David.

FREEDMAN: Thank you.

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