NIFONG'S VERSION OF THE "ORPHAN" DEFENSE
Man kills his mother and father, then asks the court for Mercy because he's an orphan.
Nifong has filed papers that create the civil version of that cheeky defense.
Loosely translated, his first position is that the complaint must be dismissed because he can't possibly have deprived the defendants of due process in that the process isn't over yet and it might be cured by the good efforts of others. To say the same thing another way, even accepting that he has done everything of which he is accused, he didn't screw up the trial of the defendants because the trial hasn't taken place yet.
I have tried to make evident that I have no dog in this fight. I don't know Mike Nifong from page nine. I have no affiliation with Duke University and haven't been in North Carolina in about 20 years. Out of interest, I have tried to explain the pleadings to folks who are interested in the case. I have read the advocacy blogs about this. I read how "arrogant" and "overreaching" Nifong is. That is for others to decide. I have a little expertise in legal ethics and I know how to read pleadings. So now I'm going to express a legal opinion, not a personal one. Interposing this lame, "No harm, no foul" defense is a poorly thought out gambit. It is evidence of the Nifong being heedless about his standalone legal responsibilities. It shows a cavalier view of the solemnity of every stage of the process of a criminal trial. It is an attempt to sidestep the issue of honesty and proper conduct by starting at the back end and looking at the outcome. Rather the "ends justifying the means" it is the "absence of an an end justifying the mean and banal behavior."
And there is much, much more in "The 'fong's" newest pleading. It's a tedious read and I have a day job. I'll get back to you.
Labels: Ethics
posted by UMRBlog @ 16:51
1 comments
1 Comments:
The extraordinary aspects of Nifong's defense:
1. Nifong's December 28th response to the Bar (contained as an attachment to his Feb. 28th response to the amended charges) following the initial grievance filed on December 22nd was written by himself (on government stationary, no less...a no no). It displayed a childish and vindictive defiance and arrogance beyond belief, actually shaking a fist in the face of the Bar in saying that he figured the Bar planned to use him as their scapegoat since the Bar needed to show some muscle after criticism it was too lax (no pun intended on the use of THAT word). It was so unprofessional as to reveal an individual that is psychologically disabled. This one letter gives us a significant read into the Nifongian mind as nothing else has to this point.
2. The current response is written by attorneys he hired on Jan. 11th. While the defense is weak, what else can his attorneys say about behavior that was blatantly public or revealed to the world via sworn testimony in court. The attorneys have, at least, made the response objective and non-emotional.
3. I see the response, strategically (if it can be called something so indicative of intelligent calculation), as:
--- a. Laying the paper trail for defense against future charges of all varieties. He is denying INTENT in virtually every other sentence. Intent is key to proving malicious prosecution.
He is denying that he knew of the multiple male DNA not related to any Duke lax player before Seligman and Finnerty were indicted on April 17th, which is a direct contradiction to the notes of DPD investigators who accompanied him to the meeting with Meehan on April 10th, but needed to prove that he did not intentionally indict two men when he had evidence that neither committed the crime and that if any crime was, indeed, committed, that it was perpetrated by other males whose DNA was found in/on the Accuser. (There is no mention of his failure to interview the Accuser about the findings, or his failure to drop the charges on the first two men once he knew there was OTHER male DNA found, or his indictment of Dave Evans in May, when he admittedly had the DNA results.)
And, he is denying that he withheld exculpatory evidence by stating the he did provide the multiple male DNA evidence and that all he was required to do was provide it "before a trial." That the data could be deciphered from 1800 pages of minutely detailed scientific data provided on October 26th (days after the deadline set via judge's order, by the way -- an order that was given after Nifong characterized the defense's unceasing pressure for the DNA info a "witch hunt"), was covered by stating that the requirement to provide the data does not stipulate that it has to be in any particular format. He did not mention that the "final report" given to the defense in May clearly noted that there was no DNA match on the 46 lacrosse players, in plain layman's English, while omitting any reference to other DNA found. It was exactly this omission of any reference to other DNA that was sought in defense's motion and which Nifong denied existed before the court. Now, he traps himself in the lie by saying it was provided, therefore admitting that it did exist.
---b. As you have already stated, Nifong seems to believe that it's okay to withhold evidence and lie to judges and defense as long as a trial hasn't happened. Okaaaayyyy. Such is justice in NC. Let's hope that's the only state in the Union that has such creative interpretations.
---c. Nifong cites that he was not sanctioned by Judge Smith for any wrongdoing, so, therefore, he didn't do anything wrong. This sounds laughable, and in fact it is in the REAL world (any criminal not caught for a crime can now say they never committed a crime). However, it is a valid defense in the legal world. Smith had the opportunity...nay, the DUTY...to find Nifong in contempt of court the moment it was proven in that courtroom on December 15th that he had lied to a judge and withheld exculpatory evidence from defense. Smith could have dismissed the charges, and even dismissed Nifong! He has done NOTHING. This is unprecedented in Bar charges this serious. The Bar literally stands ALONE in accusing an elected DA of egregious misconduct and violations of both state and federal laws!
Elizabeth Brewer, a citizen of Durham, has filed a 7A-66 filing to request that Nifong be removed from office. Against the statute governing the filing and handling of the 7A-66, Judge Hudson has merely "stayed" any action on the filing until after Nifong's Bar trial. This is a direct violation of the statute which clearly states the options a judge has when acting on the filing. Staying the complaint is not one of them. A writ of Mandamus should follow when the initial 30 days since filing the 7A-66 has expired, demanding that the statute be honored and the judge act, accordingly.
So, what we have in Durham, NC, is an utter refusal by ANYONE to do ANYTHING that acknowledges Nifong has violated Bar ethics or any law. One must doubt if the Bar has the stomach for doing what should be done. While it certainly CAN do it, it would be a major historical deviation that I'm sure North Carolina does NOT want to be the first to undertake.
I eagerly await your analysis of the response. I, at the moment, see Nifong as ready to accept the slap on the wrist he would have gotten with only the original charges of going too far in his public statements (which he was willing to take before he ever made those statements). As to the other charges, he has given only one "defense" (and I prefer to call it a bullet -- that no authority over Nifong has found him in violation of any law to this point. And, "this point" is almost ONE YEAR of acts (or inaction) by a DA that are nothing short of buffoonery and are most certainly criminal.
I view the rest of the response as laying a paper trail to avoid federal civil rights charges, NC procedural statute violations, and tortious malicious prosecution litigation.
What is sad, but unfortunately business as usual, nowadays, is that his attorneys (Freedman and Witt) have knowingly lied for Nifong. Freedman made negataive/critical public comments in the media regarding Nifong's behavior months before the Bar filed charges. Nifong has even referred to his meeting with Meehan on April 10th in other statements that are memorialized. Nifong has acted within the "system" with impunity for 27 years and is incapable of realizing that things have changed. These attorneys surely must understand that this is a man who will gladly take them down with him.
Twaddlefree
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