SPRINGFIELD AGAIN DISCUSSING CAMPAIGN FINANCE LIMITS: LIMITING MONEY IS LIMITING SPEECH

Bunch of do-gooders in Springfield have proposed campaign contribution limits saying that Illinois is "one of only four states" which don't cap campaign contributions. Well, good. That means Illinois is one of the only states that continues to believe in free speech.

Don't mistake transparency for amount. I think any significant contribution should be reported and available to the public. I think with modern drill-down technology there's really no reason that anonymous political committees can't be more transparent. But, when you talk about limiting how a citizen chooses to apply his wealth, or his time or his car or his shoe leather to get involved in politics, we part company. There is not material difference between how an individual giving his or her time and giving his or her money. Usually, our money is a product of our time and talents. Who's to say that we can give away our time and talent to support a candidate, but we can't give away the result of that time and talent? If one is unconstitutional or at least repressive, then so's the other.

Wanna talk about lowering the disclosure amount? You've got my attention. Wanna talk about excluding corporations from the process (Such as the Parking Deck that gives my republican friends so much heartburn)? We can talk? Care to make candidates file a more detailed disclosure of their possible conflicts of interest? Go for it. Most of the time my heart is with the do-gooders (Hell, even as we speak, I'm punching around on the calculator, trying to figure out my carbon footprint. I think it's 11W). But, when a human being in Illinois wants to give away after-tax money to promote a candidate he or she believes in, that is behavior to be encouraged, not banned. We want people to take an interest in government but we want to limit their ability to do that with something they earned and own? How does that promote citizen participation? How does that improve anything? It sounds like class warfare to me. Cheesy tactic by either side.

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.

MCHENRY COUNTY: HOLDING PROSECUTORS TO A HIGHER STANDARD

Facts of this one are simple. A young McHenry County prosecutor was arrested a couple of nights ago for a DUI. The State's Attorney, his boss, talked to him about it then fired him.

There are those who will argue the S/A should have waited for due process to run its course--maybe he would have been acquited. There are those who say anyone can make a mistake and that this is too harsh. I think they are are all wrong.

This State's Attorney showed the world that people in his office are not only charged with the responsibility of obeying the law they enforce. They are also charged with the responsibility of being above suspicion regarding the laws they enforce. In the surrounding publicity the S/A took pains to compliment the young man's legal abilities. That will help him land on his feet. That's a nice touch. One can uphold the standards of an office and still be humane.

I'm sorry for the young Assistant State's Attorney but I agree with the S/A's prompt and decisive handling of the situation. The public deserves to know it's chief prosecutor requires more just baseline good citizenship among the staff of lawyers representing the people.

Remember, this Assistant was charged with a serious driving offense, not simply having a drinking problem.

THE FIX FOR THE PUBLIC'S INCREASING DISTRUST OF PROSECUTORS, A LA NIFONG

Nifong is just a high profile reminder of where we stand in the post OJ era. The public neither trusts nor respects prosecutorial authority.

The short term fix in a given community is for the DEFENSE LAWYERS, of all people, to express confidence in the integrity of the local prosecutor's office. In most cases, while they have their tiffs, local prosecutors and area defense lawyers believe in one another's integrity. Of course, it's natural for any lay person to wonder why defense attorneys would help a prosecutor. The biggest reason would be that they are standing up for the system, to increase public confidence in it. That is among the basic Canons of Ethics to which we all subscribe. It would take a little cooperation among local defense lawyers and, frankly, might require a little nudge from local judges.

That's a a short-term bandaid.

An additional repair is to change the way we select prosecutors. By electing prosecutors, in most states, on a partisan political ballot, we eliminate critical review of their skills in exchange for partisan fealties. If we were to elect prosecutors in a non-partisan election, where there were no reference to parties, the elected prosecutor would not start out with a built-in 30% or so "enemies" and the candidates would have to propose ideas to distiguish themselves. This is a small thing but the difference would give the public much greater "ownership" of their local prosecutor.

Another interesting possibility has been put forward by Richard Haynes and Gerry Spence, the idea of certain attorneys being asked to a "Prosecutor by the Case". Unlike Special Prosecutors where the assignment would be made only in the event of disqualification of the local DA, PBC's would happen regularly. Let's assume that we have a town of 100,000 people and there are 15 really distinguished defense attorneys there. Every tenth felony would be assigned to one of these PBC's. The assigned PBC would not be assigned another one until the one he or she has completed the current assignment. The assumption is that the PBCs would know what it's like to be treated poorly by prosecutors and would perform to a high ethical and effective standard. The disclosure would be prompt and documented, there would not be any misleading of the other side. That higher standard would become the "community standard". Another side benefit would be that the PBCs, of necessity, would interact with the very police agencies against whom they often appear this would increase trust and collegiality. Some permutation of PBC would probably enhance public trust and infuse some diverse talent into the prosecutorial ranks.

Probably, the longest term fix is a twist on industrial Quality Management, ISO 9xxx and the like. A private organization, such as the National College of District Attorneys, could easily come up with a rigorous on site accreditation program which would include disclosure and integrity issues as well as ticklers and redundancies to make sure required information was shared with both defense and victims. There are literally a million measuring sticks that could be used. The key is the accreditation process would have to be "owned" by someone trustworthy, not any Attorney General or certainly not the Justice Department. I suggest the NCDA because it's only goal is to improve professionalism among prosecutors, they're university-affiliated and they could be counted upon to employ objective criteria. Just as in the Police arena, citizens could take comfort and confidence their prosecutor's office reflected the honesty, diligence and diversity of the community it serves.

But, to go back to the starting point, we have to walk before we can run. Right now, the salvation of ethical prosecutors must lie in the care of a responsible defense bar. That may be ironic, but it is still true.

NIFONG PART FOUR: WHEN YOU FIND YOURSELF IN A HOLE.......

......Stop Digging!

This is the fourth and final phase of the Nifong Charge and it is potentially the most devastating. Of course, All are reminded that this is only a charge and must be proven before the appropriate tribunal before there are any consequences.

The Overall claim of this portion of the complaint is "Misrepresentation and False Statements to State Bar's Grievance Committee".

The first thing we have to recognize about this charge is that it is different from the preceeding three in the environment in which it is alleged to have taken place. All the other alleged misconduct took place in the rough and tumble biospheres of either the National Press or a hotly contested criminal case. Those environments are not designed to encourage reflective or philosophical thinking or utterances. When responding to a bar complaint, there are two important differences. First, the quality of witnesses against you is high. The Bar Committee is made up of folks who live in the "Question and Answer" format. They understand the gravity of statement made by a party-witness to a disciplinary proceeding. Moreover, the answers given in that environment are in examinee's own writing, with no time constraints and with advice of counsel, or an actual transcript. In other words, unlike the previous environments, there are really no excuses for "misspeaking".

The charges, slightly oversimplified are these:

Nifong admitted to the bar that he had talked to the scientists but he denied that he had discussed with one of them the concept of leaving out the exculpatory material (DNA) and amended his statement to say that leaving out the non-suspect DNA was based upon "privacy concerns". The charge then goes on to state a bunch of collateral evidence which tends to show that Nifong was unconcerned about privacy. Thus his statement explaining the scheme to leave out the non-suspect donors' DNA was false and made in connection with a disciplinary matter.

The Bar then states that Nifong stated to the grievance committee he "didn't know" the non-suspect DNA was not provided to defense counsel until they filed their Motion to Compel in December of ''06. Without a lot of foreplay, the bar alleges that's a lie because he was talking to the scientist about leaving out that information as early as April '06.

The complaint then moves to Nifong's statements concerning his allegedly misleading statements to the Court (which we examined earlier). He alleges he was referring not to the existence of potentially exculpatory DNA but to what he called defense counsel's "allegation that an intentional attempt to conceal (exculpatory evidence) had been made." The State Bar points out that the only problem with that explanation is the Duke Defendants NEVER MADE SUCH AN ALLEGATION. Essentially he is charged with two material lies in one sentence here.

I view this claim as big trouble, a professional greasefire. The more water the respondent tries to throw onto it, the brigher it burns. Even though it will be different people, the folks determining the outcome of this complaint are the folks who believe they were lied to. They are also the people who have the power to short-circuit an attorney's livelihood. Additionally, the problems with allegations two and four are that they are the kind of conduct which requires reflection. They don't happen on the spur of the moment. It took thought and time to conspire with the scientist to deep six the non-suspect DNA. It took thought and time to compose the answers to the grievance committee. So, if there are mistatements in this phase, they are knowing, intentional and willful mistatements. Not just poor impulse control. Not a good career track.

There will come a time, I'm guessing, when Nifong's defense position becomes untenable. To me, it would be very surprising if a good deal of time were not allowed to pass in this case and then a negotiated settlement entered into. It is difficult to see how Nifong's defense could sustain the testimony of Judge and a forensic scientist describing his conduct in real time. I would look for, within the bounds of ethical lawyering on both sides, a very slow play on this (preferrably until the criminal case is disposed of) and then a deal.

Finally, a word in defense of the NC State Bar. This organization has been vilified in some NC based blogs and publications. The decision to file this complaint had to be agonizing. Even a first year law student would have figured out that a charge including suppressing exculpatory material would lead to Nifong's office having to withdraw from the criminal case. This sets up a choice between policing the bar in real time and depriving the people of their elected representative, an agonizing choice between two compelling values. To those who say it was too slow, I say, it was a momentous decision by a serious, deliberative body and the time taken was probably not a sign of cowardice or collusion, but of earnest due care.

Tomorrow, Who has the power to clean up the stain this conduct has left on the American Criminal Justice System? It's probably not who you think.

To all of those out there who have contacted me personally to acknowledge appreciation of this series of posts, Thanks. Most of you, I didn't even know you had a computer!

NIFONG, PART THREE: FOLLOWING THE YELLOW BRICK ROAD FROM STONEWALLING TO DECEPTION

First, the Cliff's Notes Review:

Step 1 = injudicious pretrial publicity

Step 2 = Failure to disclose material favorable to the Defense and cooking the reports to prevent that disclosure.

What is the natural progression from that? Of course, Phase three, from page 21 to page 27 has the lovely, fetching title of "Misrepresentations and False Statements to the Court and Opposing Counsel." I must tell you, this one is not as sexy as it sounds.

Here are included things like Stating to the Court "I have turned over everything I have" when he had allegedly failed to include a verbatim of his conversations with two scientists, denying that he had any additional conversations with the scientists that were not reflected in the reports, a specific denial that there were additional statements made by one of the scientists, a direct statement and that "this was the first I heard of (exculpatory, third party DNA identified on the person of complaining witness)."

This section is artfully pleaded but looks a little weak on its face. It really reargues topic number two more than it successfully makes out a new charge of misleading the court. The statement that Nifong falsely avowed that he had turned over "...everything I have" appears to me to be more of a legal conclusion than a statement of fact. You almost have to read the whole complaint to get a feel for how this section is weaker than the first two. There's nothing in here for which one would earn a scouting badge but I'm not sure it properly pleads a stand-alone offense.

Please don't take this as excusing the behavior. If I were defense counsel, I'd be plenty steamed about this two-step with the evidence and the way the scientists' reports were schemed, but I think the specific claim of this segment's gonna be tough to prove and this segment of the complaint probably amended.

Once again, these are only written charges which have yet to be proven. If a "misleading a tribunal" charge is proved, it almost always results in time without a license. In fact, in all the time, I've done professional discipline work, I've only seen one case where a more lenient penalty was imposed. That was a unique case where the misleading attorney, one day later, called the misleading remark to the attention of the tribunal, fixed the result, made the other party whole for wasted attorney time and turned himself into the the disciplinary body.

A careful reading of this part of the complaint against Nifong causes me to believe the charges under this section are very unlikely to be proven. Tomorrow, we will take up Section Four, Page 27 through 33. This will reemphasize for us that the coverup is always equal to or worse than the infraction being covered up in terms of the pain it visits upon the one covering up. Also known as the "Nixon Rule".

Just for fun, let's say I'm right about this one and he is not found responsible for this conduct. Is a Judge every going to believe a single word he says about the conduct of his Office? That's the practical side of a prosecutor who is not a straight shooter. In the end, it impairs his ability to adequately represent the People he signed on to protect.

What a lot of people who have never done it do not appreciate is the unique position of a prosecutor. The courts must believe your word. The defense bar must believe your word. The police agencies must accept what you tell them and rely on it. Even the crooks have to believe your word is your bond or you're out of business. The system revolves around the honesty of prosecutors. Others can shave the truth, hold back relevant information and, while wrong, that conduct does not cause the sytem to break down. The minute any of these factions cannot accept the prosecutor as honest and reliable, we're just marching in place.

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.

NIFONG, PART ONE: CUE ANDY WARHOL

The Amended Complaint is 33 pages long. The first 15 and half pages are just a recitation of the foundation of the case and a litany of imprudent public statements Nifong made which a reasonable lawyer would have thought might influence a jury. Some are more putrid than others. One essentially attacks the system by asking why a defendant would need a lawyer if he weren't guilty or had something to hide (Uh, Mike, maybe because there are unscrupulous prosecutors out there). Some of the remarks discuss evidence which I'm sure the police would rather have had come up for the first time in court. Many of them were just his undistilled opinion (essentially saying "trust me--they're guilty").

All of this is impermissible under the rules set out for lawyers and the higher standard for prosecutors. None of these looselipped pronouncements, in and of itself, would have brought about substantial punishment. There would have been some understanding that a case of nationwide publicity would be a little difficult for a local prosecutor to navigate, even an experienced politician.

But the sheer volume of them is a concern. How many times does a guy screw up before it becomes obviously willful? The non-stop chatter to national media, at some point becomes cumulative.

Factor in that the backdrop for this performance was Class/Race Warfare during a primary election and it gets slimier. In effect the performance was to convince the black locals that he was on their side "against" the rich white out of state students. A prosecutor's not on anybody's side except crime's. A prosecutor has to tell cops "no", putative victims "no", defense counsel "no" and sometimes even Judges "no". If a prosecutor pledges his allegiance to any class of people, he's missing the point of a justice system.

Still, I will contend, that, if found guilty of everything in the first 15 and a half pages of the Amended Complaint, Nifong would not have lost his privilege to practice law for any substantial period of time. Moreover, because he was an elected official, it would have been likely that he would have been allowed to finish his term before the sanctions bit. There is precedent for that in several states. Disciplinary bodies do not wish to deprive the public of the elected official it chose. There are arguments on both sides but this one has held sway for first offenders before.

Of course, the Amended Complaint doesn't end there. Tomorrow, in the words of Dr. Strangelove, we will take up the "Precious Bodily Fluids."

For today I shall close with the following: Class warfare in any direction is a bad idea.