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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.

jurors often come to court with the belief that women typically make false allegations for a variety of reasons, particularly vindictiveness

If jurors do so, they do so with good reason.

About thirty years ago the pendulum swung waaaay to far to the left --to the man-hating feminist Left, with their insistent chant that "women tell the truth."

No, women don't always tell the truth, and the implication that they do is absurd. (I'm a woman, so I can say that.) But sadly this implication has been incorporated almost as dogma into our legal system when it comes to rape and child custody cases.

My theory, FWIW, about this case is that it is all about vindictiveness -- not over rape, but over racial "slurs."

Both "dancers" were apparently enraged by things said by at least one of the Dukies. Both "dancers" apparently singled out the "little skinny one," Collin Finnerty, for special attention (he's actually not so "little," at 6'3") -- the FA is reported to have "burst into tears" when shown Finnerty's photo in that rigged line-up.

So maybe it was Finnerty who hurled a slur or two. He does seem to have hot head, if you believe reports about that incident in DC where he allegedly punched and yelled a "slur" at a bum who was hassling him.

Of course it should go without saying that uttering slurs, racial or otherwise, is A Bad Thing.

But yelling "rape" falsely is far, far worse. As the lawyer you quote points out, it is not only hideously unjust to the accused, but it hurts women too.