NIFONG, SECOND VERSE, WORSE THAN THE FIRST
OK, team, let's keep in mind this is nothing but a pleading and the State Bar must prove these charges before anything happens.
We left off yesterday talking about Phase One of the charges which can be summed up best by the referee going on live mike and saying "Illegal use of Mouth, Home Team, No. 1, 15 yards! Repeat First Down!"
That's the first 15 and a half pages. Pages 16 to 21 take us to a much darker place.
The starting point here is that ALL prosecutors have a duty to disclose "exculpatory" evidence to the defense. The prosecutor doesn't get to decide whether the evidence is powerful or conclusive. If it can be interpreted in a way that either shows innocence or reduces punishment, it must be turned over.
This Second section begins with the allegation that Nifong didn't promptly notify the defense of the absence of Defandants' DNA and the presence of the DNA of others at various locations on the complainant's anatomy. If true, that's bad. But the allegation moves on to a darker place. It actually describes Nifong telling the scientist what to omit from this report. The way it's described in the complaint is very willful and shows a pattern of attempting to keep the defense from learning about evidence helpful to the defendants. So this section has two prongs: first is failing to turn over exculpatory material promptly; Second is micromanaging the scientific findings in an effort to make it unlikely the material will be discovered or pursued by the defense. Prong number one is bad conduct because it tends to defeat constitutional protections but it could be packaged in a way that, if true, it's still not a permanent loss of license. Prong number two, if proven to be true, is not only evil but purposely so. If proven, it shows a pattern of willful failure to observe the rules. Worse, in my mind, is that it calls into questions the good faith of every prosecutor in the nation and thus, weakens our justice system. Proof of guilt of the second prong would show a very unfit lawyer. It would be difficult for a disciplinary body to see any rehabilitative potential or feel any mercy for someone who would willfully cook the report so as to defeat discovery of important fact (as to each defendant, not a donor, and four unknown donors detected).
Where possible, I've reviewed the actual case file documents. In the case of Seligmann, the prosecutor not only had a free standing duty to disclose exculpatory material but Seligmann's lawyer had also very artfully requested exactly the material that appears to have been purposely concealed. I suspect the other Def's did the same thing.
As we go through the continuum of charges, we are moving inexorably to the big leagues. Not turning over bio-evidence is a problem. Masking the existence of favorable bio-evidence is fairly large problem.
To review, we started with the Prosecutor simply making impermissible public statements. Now we have moved to concealing things he had a duty to make known to the other attorneys. Tomorrow, we move into a new arena: Actually making afffirmatively false statements to the court and counsel in the underlying criminal case. That's pages 21 to 27. It's not a pretty story, as you'll see tomorrow.
Labels: Ethics
posted by UMRBlog @ 07:25
15 comments
15 Comments:
I'll address your question later in the week.
Again, I'll add these are only charges at this stage and the State Bar has the burden of proving them.
The power to prefer charges is the most awesome discretionary power in government. With one stroke of a pen, a prosecutor can ruin or alter the course of someone's life. In the words of Ray Donovan, "where--what office--do I go to get my good name back?"
Still, I will say to you every prosecutor will throw up some clangers, undercharge, overcharge, wrong offense. It will happen. When it does, the good ones make it as right as they can and move on. Where this slope started to get slippery for Nifong is when he threw up what appears to be a clanger and decided to stand his ground. That led to trying the case in the media and may have (subject to proof) led to dishonesty, borne out of stubborn pride and political fear. As we go through the next two days, you will see the slip got a whole lot more slippery. Stay tuned.
TYFCB
thanks for the Nifong discourse !
This is one for the books and has an interest level of 9.87 !
good write ups also !
Thank you. It's sad that class warfare is such an interesting spectator sport.
TYFCB
No I am more amazed that he actually chose to press charges . I think this may be a text book "case" in law schools everywhere.
Did you read the newsweek article about 2 weeks back ? Great follow up by the journalists ( Oxymoron ) .
Our criminal justice system reposes a tremendous amount of discretion in prosecutors. When prosecutors are corrupt, like Nifong or Ronnie Earle of Travis County, Texas, who ruined Tom DeLay's public career, the consequences can be devastating.
In many states, there are severe limits on how much money can be recovered in tort suits against governmental units. I haven't researched the law in North Carolina, but it would seem that such a statute is the only plausible defense to what would otherwise be blockbuster lawsuits on behalf of the three wrongly accused Duke students.
Mike Nifong's handling of the case was clearly outrageous. But he would probably not have gone so far had he not been egged on by two other groups that rushed just as quickly to judge the three accused young men guilty of gross and racially motivated carnal violence. Despite the repeated attempts by the three to clear themselves, a substantial and vocal percentage of the Duke University arts and sciences faculty and nearly all of the mainstream print media in America quickly organized themselves into a hanging party.
Newsweek's stuff was zealously late, but thorough. It was sort of they just didn't know which side of the class warfare to jump onto.
TYFCB
1307,
Good Points all. Still, the idea is that the chief prosecutor is not supposed to influenced by ANY interest group.
TYCB
*** Ding ding ding
Give Uncle Tony a "Blue Ribbon"
That is 100% the point ! I think this is why the Nifong stuff has me rivited !
But your last statement was perfect !
"Still, the idea is that the chief prosecutor is not supposed to influenced by ANY interest group."
The prosecutor's office SHOULD always stand on it's own and the Law's merrits !
Nifong so far has ruined those 3 and their families lives and bank accounts.
1301,
I did not care for Earle's indictment and the court did not like Count I at all. Still, it was a plausible process offense and it certainly was not Nifong's rush to judgment. The other thing I will say for Earle is that he did not bombard the airways with evidence and conclusions. Even when 60 minutes did the profile on him, he didn't violate the rules of pretrial publicity. He just described his legal theory and his investigative steps.
It is my belief that prosecutors and courts must take a very deep breath before injecting themselves into the political process. Here, you and I are on the same page regarding Earle. There's no rule that you charge everything you can plead or even everything for which you have probably cause.
Maybe this would have gone differently if they had just invited Earle to St. Andrews. There's nothing like a trip to the Auld Sod to mollify an enemy.
I keep wondering about the statements Nifong made to Judge Smith (and the previous judges) assuring him there was no other DNA evidence. In the trials I've been witness to, such statements (if made) would consitute perjury and charges could (and probably would) be filed. Do DA's have exemption from such charges? Criminal charges (with the possiblity of jail time) would seem to trump all charges the state bar could bring for disbarment.
The voters were dumb enough to vote for him and the case was falling apart long before that election.
It has gotten tons more holes since, but there were holes before the primary-the DNA already was known to not match, and if I remember correctly the one guys alibi was already known.
Nifong essentially used that case and destroyed the lives of some students to get elected. He wanted charges and conviction more than he wanted justice, and he doesn't deserve to have a liscense and he sure enough shouldn't be in the position of prosecutor.
Must be "under oath" for it to be perjury. The guarantee of truthfulness when a member of the bar makes a representation to the court is not an oath but the character and fitness of the attorney. That is why the charge of "Misrepresentation to a tribunal" is so serious. The court relies on representations of fact made to it by attorneys.
To dig deeper, I'm sure Nifong is going to say, among other things, these other DNA strips weren't "evidence". That's a little simple-minded for a 56 year old, experienced attorney but, among other things, we've gotten a preview in his discussions with the disciplinary body. I'll cover that Thursday.
TYFCB
1431,
First, I must remind you that these are only charges and must be proven.
For discussion purposes, lets assume everything you say is correct. Yes, he messed up the lives of the Defendants and their families.
Every bit as devastating is he messed up the life of the complainant as well. Sometimes, the best thing a prosecutor can do for a "victim" is help him or her get some counseling and show them in detail why a case cannot go forward. It should be done quietly so as not to do any additional damage. It is not the kind of macho, pro-victim attitude that prosecutors like to take but it is a part of the job. When one can do no good, at least one should do no harm.
I don't know what happened in there but I do know this: the process hasn't left anyone who was there that night better than it found them. What kind of justice is that?
TYFCB and for your sincere and to-the-point comments.
Although he did for far to long, how did Nifong ever think he was going to get away with this? Particularly with the caliber of lawyers he is up against. What do you think the smirking, laughs, snide remarks and his general demener was about?
Post a Comment
<< Home