Mike, meet your cellmates. Y'all gonna get along just fine.
Posted on 10/07/2006 3:47:57 AM PDT by abb
In Duke rape case, deep questions about prosecutor's discretion
By ALLEN G. BREED, AP National Writer October 7, 2006 12:06 am
DURHAM, N.C. -- There's not much middle ground in the legal community when it comes to opinions of local prosecutor Mike Nifong's most famous case.
His law school classmate Patricia McDonald, citing "an utter lack of evidence that a crime even occurred," wrote to Gov. Mike Easley and urged him to pressure Nifong into stepping aside in the Duke University lacrosse rape case.
"Mr. Nifong has lost his moral compass despite his claim that he is a `committed advocate for the truth,'" wrote McDonald, a former assistant in the Maryland Attorney General's office.
That's not the Durham County district attorney whom John Bourlon knows.
The criminal defense lawyer has faced off against Nifong hundreds of times over the past three decades. He's seen the prosecutor drop a weak case the day before trial.
Despite the supposed flimsiness of the evidence in the Duke case, Bourlon keeps coming to the same conclusion:
"I'm CONVINCED he has something."
Untold hours of television air time and countless drums of ink have been spent parsing what the Duke case -- with its three white, private-college defendants and the poor, black stripper who accused them -- says about race and class in our society.
More recently, the question has been: What does the case say about the fairness of our justice system -- and the power of those who run it?
If the American legal system is a machine, the prosecutor is the On/Off switch. The prosecutor decides whether a person should be charged with a crime and, if so, which among a wide array of statutes should be used. Ultimately, it's his choice whether to go to trial or drop the case.
These are decisions, of course, that can upend a person's life, says Joshua Marquis, a vice president of the National District Attorneys Association. "Accusing a man of sexual misconduct ... is just about the worst scarlet letter you can paint on somebody. And there is enormous responsibility that comes with that."
Nifong's critics say he has abused his discretion, prejudicing the case with unethically loose talk, stubbornly refusing to acknowledge contradictions in the accuser's statements and ignoring strong exculpatory evidence. The players' defense lawyers accuse Nifong of using the case to woo black voters in a tight election.
But fellow prosecutors say the job's wide discretion cuts both ways.
"What happens if he decides, `I'm not going to present it to the grand jury. I'm going to play judge and jury, and these guys are going to walk'?" says Charles M. Hatcher Jr., a former West Virginia prosecutor who successfully overcame a misconduct complaint. "Damned if he does and damned if he doesn't."
------
The particulars of the Duke case were an explosive mix to begin with:
Black accuser, white athletes. Southern town, walled campus. Racial epithets. Protest rallies. National media.
Then Nifong lit the fuse.
In the weeks following the March 13 party where the alleged rape occurred, Nifong referred to the players in interviews as "hooligans" used to having "expensive lawyers" get them out of trouble. He denounced the "blue wall of silence" that had supposedly formed around the perpetrators and said DNA would reveal exactly who had committed the rape.
Even after DNA tests failed to establish a link between the players and the woman, Nifong took the case to the grand jury, which returned indictments against three men: Dave Evans, Collin Finnerty and Reade Seligmann.
Defense lawyers and bloggers have been picking apart his case ever since.
The alleged victim -- a single mother who attends historically black North Carolina Central University -- has told at least a dozen different versions of her story, by one defense lawyer's count. Toxicology tests failed to show she was given a date-rape drug, as Nifong suggested in one article. Seligmann's attorney says Nifong refused to look at cell phone logs, ATM video and taxicab receipts that supposedly prove his client couldn't have committed the crime.
Nifong's public statements "almost certainly" violated a state bar rule that forbids prosecutors from making comments outside court that have "a substantial likelihood of heightening public condemnation of the accused," wrote K.C. Johnson on the Web log Durham-in-Wonderland.
"Few prosecutors in history have publicized their case and condemned potential defendants as egregiously as Nifong did," wrote Johnson, a Brooklyn College constitutional history professor.
Suggesting that Nifong was grasping at anything to keep his case alive, critics noted that the second dancer at the party allegedly changed her story after the prosecutor personally intervened to have her bail reduced in an old embezzlement case. Others faulted the supervising detective's 33-page report -- which was handed over to the defense four months after the alleged attack, and which contradicts what the rape nurse and others remembered about the accuser's early statements.
"There is almost no evidence that could be construed as corroborating the alleged victim's accusations," says Rob Warden, director of Northwestern University Law Center on Wrongful Convictions. "The prosecutor appears to have acted precipitously, without due consideration of evidence to the contrary -- evidence that does not fit into their theory."
Chastened by the attacks, and by a judge's order to limit "extrajudicial" comments, the 56-year-old prosecutor has ceased giving interviews, though he has used court appearances to rebut his critics.
During a recent evidentiary hearing, Nifong shot to his feet when Evans' attorney Brad Bannon suggested that the prosecution had "very little evidence" other than the accuser's word.
"Your honor," Nifong said, "I object to his characterization of my case."
On his campaign Web site, alongside photos of his wife, son, and Australian shepherd, Tillie, Nifong defends himself against allegations of misconduct.
"I have never understood why any prosecutor would try to gain an advantage at trial by concealing evidence from the defendant," he wrote, saying he began giving "open-file discovery" to all defense attorneys 20 years before the state legislature required it.
"And that is why I have never had a conviction overturned for violating a defendant's right to discover the State's case against him."
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Television may conjure a "gladiatorial" image of the justice system -- "two fevered champions of the truth as they see it ... going into battle," says Marquis, the National District Attorneys Association official. The reality, he says, is less noble.
"I've been a defense lawyer," says Marquis, a prosecutor in Astoria, Ore. "Your job is to protect the guilty. ... Vigorous defense of a defendant is never sanctioned. Overly vigorous prosecution is."
Until a recent state Supreme Court decision limiting their power to control the court calendar, North Carolina prosecutors were considered among the most powerful in the nation. Even with the change, district attorneys retain broad discretion.
"The prosecutor is the de facto law after an arrest, deciding whether to charge the suspect with committing a crime, what charge to file from a range of possibilities, whether to offer a pretrial deal, and, if so, the terms of the deal," wrote the authors of "Harmful Error," a 2003 study on prosecutorial misconduct by the Center for Public Integrity.
Researchers found more than 2,000 cases from the previous three decades in which judges and appellate court panels cited prosecutorial misconduct as a factor when dismissing charges, reversing convictions or reducing sentences.
They found thousands more cases in which judges labeled prosecutorial behavior inappropriate but "harmless," and upheld convictions.
Of the 44 cases the center found in which prosecutors were brought up on disciplinary charges, 12 had their licenses suspended and two were disbarred.
Going after a law license is the only way to punish prosecutors' harmful missteps, says Warden of Northwestern's wrongful-convictions center.
"Our law makes prosecutors immune from civil liability in these cases," he says. "So no matter how egregious their misconduct, basically they can't be sued. And so there's no price to pay."
Hatcher's case was dismissed, but not without a price, he says. A former assistant DA in Cabell County, W.Va., Hatcher was accused of failing to disclose exculpatory evidence in a kidnapping and sexual assault case -- specifically, that the accusers had been hypnotized. Although a disciplinary board dismissed the charges for lack of evidence, Hatcher says defending himself "cost me as much as I'd made" in 20 years as a prosecutor.
Insisting that true prosecutorial misconduct is rare, Marquis argues the prosecutor is the only member of the legal profession whose "sole allegiance is to the truth" -- even if it means "torpedoing" his own case.
"One of the luxuries of being a prosecutor is the ability to look at a case at any stage of the proceedings and say, `You know what? Ixnay.'"
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To believe that Nifong is blindly forging ahead with a bogus case simply to get elected to a job he had to be nudged into taking (he was appointed when a previous D.A. became a judge) goes against what colleagues and even courtroom adversaries have said about him: That he's fair and apolitical.
Bourlon says Nifong, a former math teacher and social worker who went to work in the DA's office 28 years ago as an unpaid assistant, is not that kind of prosecutor.
"He doesn't hold cards back and play games," says Bourlon. "It's just not his way."
And he does dismiss cases; his office last year dropped 44 percent of all felony charges it filed, before they went to trial.
While Warden doesn't think Nifong can win a conviction in the Duke case, he concedes that the district attorney is under no ethical obligation to drop it "if he thinks the person is guilty."
After an indictment has been returned, it can be tough to walk away from a case, notes the prosecutor in another high-profile rape case, Mark Hurlbert of Eagle County, Colo., who brought charges against NBA star Kobe Bryant in 2003.
"Your ethical burden does not outweigh this feeling, that you put the time and effort into this case. You want to see it through," says Hurlbert, who dropped the charges against Bryant when the accuser, battered by defense leaks and media scrutiny, withdrew her cooperation.
"We were ready to go to trial," says Hurlbert, who adds he hasn't seen anything yet that makes him think Nifong should drop his case or appoint a special prosecutor.
Gov. Easley, meanwhile, has no intention of asking Nifong to step aside, spokeswoman Sherri Johnson says.
Nifong, facing election in November, says he expects to go to trial next spring, and he intends to prosecute the case himself -- if he's still in office. URL for this article: http://www.heraldsun.com/state/6-776437.html
Ping
Linkback to old thread.
http://www.freerepublic.com/focus/chat/1711519/posts?page=157
Pretty good article, fair and gives a good overview and also some details particular to NC. However, I hate when people use the word "sanctioned" and I can't tell if it means "permitted" or "criticized". Such a strange word!
In this case you could read it as: "Vigorous defense of a defendant is never punished."
Well, with a little luck he'll be in private practice by then.
Or maybe a private cell.
NandO's editors gutshot by Joan Foster this morning...
http://blogs.newsobserver.com/editor/index.php?title=march_25_interview&more=1&c=1&tb=1&pb=1#comments
10/07/06 at 07:11
" Speculation, premature conclusions, white-hot political rhetoric, amateur psychoanalysis -- all are prevalent these days in Washington."
Hey, Editorial page, that was Spring in Durham too. And one of your Editors was fiddling with the story to make it "cleaner."
By Ms. Williams moral standards, if the Foley page told her Bush was in the room with Foley when they were instant messaging each other..why , golly, she'd never print THAT. Unsubstantiated? Right , Linda? Right?
In time we'll know who authorised the "vigilante poster" "without the discussion we should have had." Helping hands again.
Maybe there's more.
Every blogger on this page, every concerned parent will get the story out. By God, we will.
It's terribly sad for those of us who truly wore ourselves out for equality and justice years ago..to see our daughters display the same hateful bias in reverse.
Your readers will learn you did this. You can fold your hands and wait for trial. And personally, I'll do a little fund-raising then...for a billboard contrasting what we learn at trial with what YOU told us...and what you HID from your readers.
Mike, meet your cellmates. Y'all gonna get along just fine.
I wonder how much coverage this race is getting in Durham (minus the Duke case) i.e., signage, rallies, events attended by Nifong to help his campaign, etc.
His website is pushing ahead to the November election.
Here's a letter to supporters.
http://mikenifong.com/nov7support.php
I was wondering whether the rally for Nifong was held on October 1 as mentioned on the site. It was held and here are the pictures from that rally.
Yeah, I'll just bet they do. Especially the people who have been indicted after a five minute presentation to a grand jury.
Does it never occur to any of these people that there is one thing he could have done: waited?
He could have TALKED to her; he could have TALKED to them.
They must have updated the pictures. From Liestoppers October 4:
http://liestoppers.blogspot.com/2006/10/durham-da-race-updates.html
[snip]
Examination of the directory, http://mikenifong.com/kickoff/, linked at WTVD appears to confirm the observations that the all of the photos shown by DA Nifong on his campaign website were indeed taken months ago and not this past weekend as his site suggests.
What the heck is that about?
[snip]
For the record, fifteen members of the [lacrosse] team have received citations over the last four years--thirteen for holding an open beer can in public. This is not something to be proud of or dismissed. But it does need to be put into perspective and measured against the total number of Duke students who have been cited for alcohol violations, especially now that we know that the DPD has adopted an official policy to target and arrest Duke students.
[snip]
It is also interesting to examine the statistics for students charged with academic dishonesty. Over the past four academic years, 180 students were charged with academic dishonesty. Ninety-one were charged with plagiarism, seventy-four were charged with cheating, and fifteen were charged with lying. As far as I know, not one lacrosse player was charged with academic dishonesty. While there were some athletes cited, the statistics show that the overwhelming majority--86 percent--were non-athletes. Moreover, 34 of the adjudicated students were from Pratt, the school's engineering school. Does Brodhead think that engineering students at Duke are guilty of a pattern of irresponsible behavior? Shouldn't academic dishonesty be viewed with more alarm than holding an open beer can?
If you look at the mid-section where it says "Let's keep Mike Nifong District Attorney - 14th Prosecutorial District" at http://mikenifong.com/ you will see the words Photos, More Photos, and October Rally; the photos I linked were from the October Rally link.
I do believe the photos are new, however, I don't remember reading any coverage of the rally in the news or seeing it mentioned on TV.
From the article:
And he does dismiss cases; his office last year dropped 44 percent of all felony charges it filed, before they went to trial.
Almost half of all felony charges were dropped last year before they went to trial. Wow! Now I'm assuming a large portion of these dropped charges were due to plea deals, but still, 44 percent of all felony charges were dropped before they went to trial!
Do we dare hope this will happen in the Duke case (minus a plea deal, of course)?
Linda Williams, the editor on duty the weekend of the March 24 story, decided that certain information CGM opined about Kirm Roberts wasn't pertinent to their story. Because, they said, "it didn't concur with the police report."
Oh, so they did the same thing that the NCCU student newspaper did, right?
Is Linda Williams black?
The entire blog string is a good read. The answer to your question is yes.
http://blogs.newsobserver.com/editor/index.php?title=march_25_interview&more=1&c=1&tb=1&pb=1#comments
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