Althouse: "Systematic abuse of prosecutorial discretion."

January 24, 2007

"Systematic abuse of prosecutorial discretion."

New ethics charges against Duke lacrosse team prosecutor, Mike Nifong.

21 comments:

sonicfrog said...: Now the question becomes: can the accused students sue Nifong for damages or slander?

PS. Nifong - What an unusual last name for a white guy. Since this case went national, I have wondered what nationality it derives from.; 1/24/07, 11:39 AM
Glenn Howes said...: As usual, K.C. Johnson has more information on his blog including a link to the actual amended complaint than the N.Y. Times is likely to provide.; 1/24/07, 12:01 PM
The Drill SGT said...: here is the Bar Report

http://wral.com/news/local/flash/1177454/

the good stuff starts at para 182.

The best or worst seems to be:

1. Nifong made claims in seeking testing that the guilt or innocence would be clear from the results of the DNA. who's stuff was found, etc

2. Having found no Player DNA, he then indicted them

3. Having found DNA from 4 other males, he did nothing to reopen the investigation or even talk to the accuser.

4. He conspired to cover up exculpatory DNA evidence and LIED to the Judge in multiple filings and in court appearances.

If the world was Just, they'd send Nifong away for the 20-30 year sentence he attempted to inflict on innocent victims; 1/24/07, 12:11 PM
Bruce Hayden said...: I was wondering how long this would take. The previous ethics charges were somewhat weak. But withholding evidence that might exonerate the defendants, and filing the charges knowing that this evidence exists, was potentially an extreme voilation of his professional ethics. And then he apparently lied about it to the judge - possibly repeatedly.

A bit more background - the "victim" claimed that she was raped by Duke LAX players. But her identification has changed as the defendants have been able to cooborate their alibis. In any case, she apparently claimed that she had not had sex with any other guys in the days leading up to the alleged rape. But then the DNA from (I believe) three other non LAX players was found either in her or on her underwear.

The DNA evidence then not only went to show that they had not raped her, but also to significantly destroy her credibility because she apparently lied about her sexual contacts in the days before the alleged rape(s).

And because of the evidence's impeachment value, it ethically should have been disclosed to the defendants.

Also, the DA appearantly knew about this before filing rape charges, but did so anyway. That he dropped them when the evidence was forced out by the judge isn't a defense. Rather, that too was a gross abuse of prosectorial discretion.

Remember, the state typically has a lot more resources than do defendants, and it invariably has much better access to the evidence (since its employees are invariably the ones collecting it). So, prosecutors have a high duty of candor, even higher than other attorneys.; 1/24/07, 12:28 PM
Bruce Hayden said...: Let me add that if the charges are born out, if this happened here in CO, the question would be whether he would be disbarred or suspended for the maximum three years.

A bit over a decade ago, a fraternity brother of mine was the DA in one district here, and ended up suspended for three years for buying pot for his wife for her own personal use.

A second DA was disbarred at about the same time for instigating a sting operation where an attorney was caught trading services for a machine gun (that attorney was also disbarred). Orchestrating the sting was considered dishonesty (if the cops had done so on their own, it would have been just fine - it was the DAs involvement that was the ethical violation).; 1/24/07, 12:36 PM
The Drill SGT said...: one more item:

para 279. Nifong lied to the State Bar Grievance group, which in and of itself is a disbarrable offense.; 1/24/07, 1:08 PM
KCFleming said...: Luckily for these students, Duke held fast to the concept of 'innocent until proven guilty', and its faculty acted with greater integrity than Nifong.

Oops.; 1/24/07, 1:20 PM
bearbee said...: Now the question becomes: can the accused students sue Nifong for damages or slander?

Attorney: Duke Case District Attorney Can Be Sued

PS. Nifong - What an unusual last name for a white guy. Since this case went national, I have wondered what nationality it derives from.

Nifong; 1/24/07, 2:11 PM
vbspurs said...: PS. Nifong - What an unusual last name for a white guy. Since this case went national, I have wondered what nationality it derives from.

Heh. I've always wondered the same thing, Sonicfrog, and I'm sure we're not alone.

Nifong...Vietnamese.

But like Scott Fujita, the linebacker for the Kansas City Chiefs who says he's always being asked if he's Japanese (he's adopted) -- perhaps it's a fluke.

Cheers,
Victoria; 1/24/07, 4:02 PM
vbspurs said...: Bearbee linked:

Nifong

Blimey, it's Scots?

Never heard of a single Nifong there, but then I can't know everything (although I can act as if I do).

Cheers,
Victoria; 1/24/07, 4:04 PM
AllenS said...: This will cost the city of Durham and Duke University a lot of money.; 1/24/07, 4:20 PM
dearieme said...: The nationality link for Nifong would have been more persuasive if the Strathclyde Britons had spoken Gaelic. But they spoke the ancient British language that eventually eventually evolved into Welsh. Still, it may be roughly right, which is more than can be said for the Nifong crook.; 1/24/07, 4:58 PM
Glenn Howes said...: Somehow, I am reminded of the following quote from the movie "The Untouchables."

Elliot Ness: "ln Roman times, when a fellow tried to bribe a public official, they would cut off his nose, sew him in a bag with a wild animal, and throw that bag in the river."

I am not saying Mr. Nifong deserves such a fate, that is just too gruesome, just that there should be serious consequences if he's found guilty.; 1/24/07, 5:44 PM
The Exalted said...: i agree with bruce hayden and cedarford -- wtf; 1/24/07, 5:52 PM
Steven said...: Nifong belongs in prison for this. So does Miss False Police Report.; 1/24/07, 6:12 PM
Hey said...: Bruce Hayden: They found 5 DNA donors when they swabbed the complainant. Multiple sources were found in her rectum...

On the bar complaint: the best aspect is that they are pursuing him for the costs of investigating and prosecuting the case. He's going to pay for his own hanging.

While normally you'd expect the Bar to cover for a fellow lawyer (see disbarring someone who set up a sting), this has been far too public for this to happen. Nifong is going under the bus to preserve the independence of the Bar and to protect the guild's prerogatives.

As to Duke's liability... possibly from the statements of Professors, possibly from the actions of professors (kim curtis), and possibly from the behavior of administrators (Duke supposedly interfered with right to counsel, interfered with communications with family members, and Brodhead's statements will be attacked). Whether or not Duke has any real liability you'd need a passel of lawyers to answer (several very different bodies of law involved), but their desire to avoid discovery, especially Federal discovery, suggests a substantial likelihood of large settlements just to make the cases go away.

The continual damage that the case is doing to Duke will be the primary driver of settlements. Attracting students when they are constantly bombarded with stories of the DA and Police running amok, intentionally targeting Duke students, trumping up charges, and being cheered on by Duke Professors, Administrators, and the citizens of Durham is just slightly challenging. So is calling up alumni for donations.

The families are said to have spent somewhere between $3M and $5M on the defence so far ($1M to $2.3M each) with monthly tabs north of $80k, on top of bail that was initially $400k each and is now $100k per. Even if your child is on a full scholarship, that's a rather substantial risk for attending a keg party.

So every article about every suit broadcasts the message that Duke/Durham is not a safe place to send your children. A young woman was murdered in her dorm at the other school in town (NCCU), 2 Duke students were attacked by NCCU students for being in "central territory", and if anything is alleged Duke will throw your child to the wolves. Getting these stories out of the media and the blogs is worth a simply massive amount of money to Duke. Regardless of the merits of the cases, Duke will pay to make this all go away as soon as they can.; 1/24/07, 6:49 PM
bearbee said...: The families are said to have spent somewhere between $3M and $5M on the defence so far ($1M to $2.3M each) with monthly tabs north of $80k, on top of bail that was initially $400k each and is now $100k per.

To my knowledge there has been one lawsuit . How many more families are involved and intend to bring suit?

Duke self-insures its general liability. I assume its Professional Liability is with an insurance carrier.; 1/25/07, 6:49 AM
Bruce Hayden said...: Obviously, the woman having sexual contact with three other men (but not any LAX players) would be bad, and five is worse.

I was watching CSI Miami/NY (definately not the original) and they used DNA to profile some guy - hair color, skin color, size, etc. We aren't there yet, and I don't expect it for at least a decade, but that technology would have made the case even more interesting. I know sex can be determined from blood (and obviously semen), and believe that race can be guessed at from blood DNA, but semen may be harder.; 1/25/07, 9:11 AM
Bruce Hayden said...: Remember in my example of the DA trapping a criminal defense lawyer to take his fees in a machine gun, that both attorneys got disbarred. It wasn't a question of protecting attorneys against unscrupulous DAs, but rather that the DA had engaged in fraud.

That said, having been personally involved in the bar(s) for nearing twenty years, and around it for well over 50 years (my father practiced law for 47 years), the self regulation works fairly well for most of us, arguably a lot better than self-regulation of doctors works. You diddle a trust account, and you get disbarred and go to jail, etc.

But the one place where it fails is when a lot of money is involved. Bar ethics committees seem to always be filled by big firm attorneys, and they take care of their own - you almost never see big firm attorneys being disciplined, despite routinely doing what most of us consider unethical (like, for example, billing two clients for the same time).

But the big hole in attorney ethics enforcement is that discipline is quasi-legal, and therefore susceptible to good lawyering. If an attorney hires the right lawyers to defend himself, he can often get off with much lighter discipline. But the right attorneys cost money, often a lot of money. It is the ability and willingness to spend that sort of money that allows some elements of the legal profession to essentially face a different standard.

I should note though that the best attorneys don't avail you that much if your case is too well known. Bill Clinton got a 5 year suspension, and Mike Nifong is going down. And, I think that one of the big tort firms is in trouble right now.; 1/25/07, 9:30 AM
bearbee said...: re: How many more families are involved and intend to bring suit?

I am curious because if I was the parent of a child pictured on this poster I would be on the warpath. I can easily imagine these students being subjected to varying degrees of embarrassment and humiliation as a result of the poster.

If so, thats a whole lot of lawsuits.; 1/25/07, 9:30 AM
Bruce Hayden said...: Stumbled into this on a Nifong thread: Brady v. Maryland, 373 U.S. 83 (1963), which says that: "Suppression by the prosecution of evidence favorable to an accused who has requested it violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution". Pp. 86-88.

Nifong could argue that the suppressed DNA evidence was not "material". But I think that a losing argument, since it impeaches the credability of the compainant.

Of course, "Due Process" is a term straight out of the 5th and 14th Amendments. This means that it is also likely actionable (criminal and civil) as a violation of the Defendants' civil rights.; 1/26/07, 11:52 AM