Posted on 05/17/2006 7:09:30 AM PDT by Locomotive Breath
A man stands in the background of the Duke Lacrosse 'rape' case…watching. While the alleged rape of a black woman by three wealthy, white male students remains in criminal court, he is not likely to step forward.
[snip]
Even at this early stage, however, the accuser's mother is "very much interested" in "getting [him] involved."
Nicknamed "the Giant Killer," attorney Willie E. Gary is a litigator renowned for winning huge settlements.
(Excerpt) Read more at foxnews.com ...
As an aside, I took a drive down Buchanan Street last night. 610 is more of a dump than TV can possibly show.
ping
pingarooney....
"Winning huge settlements" is ALL this has ever been about.
Since Robert Bennett is involved, hopefully he will keep the LAX players and their families focused on insisting on a trial.
ping
I'm not surprised and in fact we've all said this was about the money.
The last time the false accuser made up a story about rape it was against 3 black kids who likely didn't have much money. This time, she's going for the gold.
We had been assuming that a civil suit would follow, but this his the first time I've read that there have been actual conversations between the family and lawyers concerning this matter.
From what I've heard it appears that this schmuck prosecutor wants to hold off any trial on this until 2007. Doesn't NC provide these guys with a right to a speedy trial? I don't see where there's any evidence against these young men and, if it were me, I'd be demanding a speedy trial.
I wonder if the lacrosse players will be initiating any civil action in this situation.
It would appear that they have cause, Mr. Niphong and the others have basically ruined their lives in this case, and the future of a couple dozen young men attending a top school like Duke is worth a lot more in civil court than the limited future of a professional escort who likely has a drinking/substance abuse problem from the reports I've seen.
I'd say the accuser really doesn't want to be in a courtroom where "actual damages" and "intentional harm" to one of the parties in this case are topics of discussion.
These indictments were about winning an election. They've never been about actually trying anybody.
Oh, and for CGM's family, they've been about squeezing some cash out of a group of rich white boys.
I think I read that North Carolina law does not provide for the right to request a speedy trial. Sadly.
Attorneys in NC were asked to give their opinion about Nifong's conduct in the Duke case.
Every single one of them condemned him soundly.
This is one I thought was interesting. The last sentence is particularly compelling.
Mr. Nifong's conduct generally, it is both unethical and unprofessional. Because you are soliciting legal opinion, I want everyone to know that not only are you correct in assuming the worst, but that the more you know the worse Nifong's conduct appears.
Without getting into too detailed of a bill of particulars, he has violated, not one but likely, several ethical rules. There is little doubt at this point as to his egregious and systematic violation of the rule against publicly commenting on matters likely to be tried in court. Not only is he tainting the jury pool by trying the case in the media, he is using the opportunity to do so to make arguments to the jury pool that he could not make in court. Calling the defendants 'hooligans,â? suggesting that innocent people do not need lawyers and inviting the inference of guilt from the silence of the accused are things that would bring instant and vigorous rebuke if uttered in open court and could potentially be grounds for mistrial or contempt of court.
The preamble to the rules of ethics used in North Carolina states that Lawyers should 'cultivate knowledge of the law beyond its use for clients, employ that knowledge in reform of the law, and work to strengthen legal education.â? Although this is established as an ideal rather than a rule, it, nevertheless, provides another lens through which to these arguments. By making these sorts of arguments and generally acting as a demagogue, Nifong has done the opposite. He has spread misinformation about the law and sought to undermine its most cherished values, such as the equality of all persons before the law, the right to and importance of assistance of counsel and that the accused should be tried in a manner that respects their fundamental rights. Such statements also bring the profession into disrepute.
How serious are these matters? I handled a case on appeal where Mike Nifong's counterpart in a local county referred to the defendants as 'muttsâ? (as in Mutt and Jeff) in closing argument. This was fairly innocuous, but still out of bounds. I conceded the wrongfulness of this type of argument, but the case was still a clear winner for the state because the error was harmless given the overwhelming evidence of guilt. Ordinarily a case like this would be submitted on brief without argument. However, the Chief Judge of the Maryland Court of Special Appeals scheduled the case for oral argument and assigned it to his own panel so he could personally yell at me as the representative of the state and let me know that, even though the conviction had to be affirmed in that particular case, he would not tolerate this sort of conduct. There was no other argument or any questions from the panel. It was that important to the Chief Judge. I called the state's attorney and ! tell him that the Chief Judge had a message for him.
Nifong also likely violated the rule against directly contacting persons represented by counsel when police went to interview the team members at their dorm. A basic legal principle is that a person cannot do through the use of an agent what he himself cannot do personally. Caselaw I have seen suggests that this is the principal applied where a prosecutor uses or encourages police to question suspects represented by counsel. The circumstances suggest that Nifong sent officers to get information he desperately needed in order to go forward with his indictments. Indeed, Nifong himself has been quick to tell us that he is the one directing the investigation, not police. This conduct is a serious matter and typically leads to reprimand or sanction in the state where I live.
Nifong, also likely violated the rule that requires prosecutors to pursue charges only were they personally believe that the accused has committed a crime and not simply because they believe they can secure a conviction. Many prosecutors try to avoid this duty by being agnostic or simply not thinking about it. However, Nifong went beyond that and took a position of willful ignorance by refusing to consider or even look at the exculpatory evidence presented to him by defense attorneys. Willful ignorance is not a defense to any guilty act and, even if the defendants did commit a rape, Nifong violated the rule by consciously shielding himself from any evidence that might have made him think twice about his decision to prosecute.
The worst part about Nifong's unethical conduct is that he knows better and that the conduct is willful. When called on these matters, he becomes indignant and treats them as his entitlement.
Mike Nifong also comes up woefully short in terms of his professionalism. At the outset, he stated that this case was so important to him that he was assigning it to himself. Published reports seem to indicate that Nifong had a solid reputation as an effective advocate. The operative word there is 'had.â? Nifong has not tried a felony case in several years. Moreover, rape cases are extremely tricky to try. Without getting into a lot of detail, juries hate hearing rape cases involving acquaintances and, worse are prone to apply their own questionable standards rather than the legal ones they are told to apply in order to acquit. Downtown juries are usually the worst in this regard. Having experience trying rape cases is absolutely vital. Most district attorney's offices in a city the size of Durham would have one or two prosecutors who specialize in sexual crimes. If Nifong were truly serious about winning this case and, according to his lights, seeing justice ! done, he would never in one million years have assigned this case to himself.
Nifong was hasty in bringing the indictments. His timetable for doing so was apparently driven entirely by his election needs. The police still have not completed their investigation. As I write, the second round of dna tests have just been returned. First, he ordered the police to violate their own standards for photo identifications and those accepted as critical for proper identification just so he could generate some names to insert in his bill of indictment rather than wait for other evidence. Second, if other evidence does identify another person or persons who can be tried, Nifong has potentially undermined that case by linking it to the fortunes of cases cases against two men who may have solid alibis.
I do not believe that Nifong is an incompetent attorney. However, he has manifested an inclination to take risks in order to advance his own interests and, in doing so, to act in a manner contrary to the interests of the community that he is purporting to serve.
Remember when I told you that rape cases are difficult to try? One of the reasons is that jurors often come to court with the belief that women typically make false allegations for a variety of reasons, particularly vindictiveness. If at the end of this process, the complaint in this case does turn out to be false, Nifong has set public attitudes towards rape back 50 years by embracing the media attention that came with the case rather than quietly getting all of the facts and filtering this case out of the system.
In my time, I have worked with or had the opportunity to observe local prosecutors of varying levels of competence. Many of them were extremely zealous advocates. However, the overwhelming majority of them were highly ethical and professional in their outlook and approach to their work and generally good folks. I say that not because I worked on the prosecution side. If anything, I have an extremely low tolerance for this sort of foolishness because, as an appellate attorney, I was the one who had to try and clean up after inept or overreaching prosecutors. Aside from a couple of prosecutors in the federal system, I have never heard of anyone as unethical and venal as Mike Nifong.
Responding to your aside, I bet the house I lived in, in college, was more of a dump.
It would be one thing if a rape had actually occurred. The depositions would be still be rough, but in this case, with tons of doubt about the truth of both the A/V and Kim, the depositions will be devastating because they will have to face hours and hours of questioning by highly skilled attorneys. Any deviation, any mistake, is going to cost them big time in court. And they will be in legal jeopardy if they get on the stand and change their testimony. Nonetheless, it will still cost the parents a lot of money defending their sons.
Where did that come from, Peach?
That's good stuff.
I've been on the wrong side of this kind of prosecution myself, although for far less serious charges, and the way the state can drag these things out is immoral. After being found not guilty on a handful of the charges, the state simply posted a "nolle prosse" on the rest which meant that they were declining to prosecute while never admitting that they were wrong to charge me in the first place. Somehow I am convinced that if these defendant weren't viewed a priveleged white kids, the Justice Department would have swooped in to put an end to this malicious and patently political prosecution.
I think I read that North Carolina law does not provide for the right to request a speedy trial. Sadly.
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If I were a prosecutor and believed in my case, I would want to provide these defendants a speedy enough trial that Federal Courts would not get involved over the lack of a speedy trial. But Nifong is an egomaniac.
The absolutely worst thing that could happen would be for the defendants to offer any sort of settlement, even $1. This needs to go to a fair jury, if one is to be found. North Carolina is full of people who file ungrounded civil suits, just looking for the $10,000 "nuisance" fee to go away. It happens all the time, because the minimum cost of an actual trial to defend one's self is $20,000 to $30,000 and that would be without the expert witness fees.
If a civil suit is filed by the accuser, the defendants must immediately file a countersuit to stop them. When people get countersued while filing a frivolous or false claim, they will end up getting screwed, pun intended.
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