Posted on 12/18/2006 4:44:22 PM PST by abb
his is not the way the system is supposed to operate. Prosecutors are supposed to be out for justice, not blood; committed to the truth, at all costs, not winning, without more.
Prosecutors aren’t just morally obliged but legally required to turn over exculpatory evidence to the defense.
Prosecutors aren’t just one side in a battle.
You can’t come across the smoking gun covered with fingerprints on it – come across it because you have the power of the state to collect all the evidence – and then decide to ignore it because they don’t match the fingerprints of the guy you’re prosecuting for the crime. You certainly can’t file the report from the lab for your eyes only.
You have to tell the defendant that the smoking gun has someone else’s prints on it. He has a right to know that, and the prosecutor has a duty to tell him.
There is a reason that the rules are such. The prosecutor represents the people. The people’s goal is winning, which doesn’t have to mean a perfect conviction rate.
The goal is supposed to be to convict the guy who did it, not frame the guy you’ve got.
Somebody should tell that to Mike Nifong. Or to the judge who is in a position to do something about who prosecutes the Duke lacrosse players charged with rape.
What is going on in the prosecutors’ office in Durham North Carolina is disturbing in ways that go beyond the ugly allegations that started this case.
The District Attorney has clearly lost sight of his mission, and with it the last remnants of any ethical compass. The case has been characterized, since the outset, by a clear failure to follow the office’s own procedures and practices.
(Excerpt) Read more at foxnews.com ...
"That's a line that I am going to steal, if I might?"
Sure. Especially if you apply it to demonrats.
Systematic injustice - an ugly mess to clean up. If it ever even can be in a place such as Durham.
On a side note, where is that baby that cousin Jakki and FA's family said was born last week? (sarcasm.) I think we all would love to see a photo of Aunt/Uncle Jakki holding her/his/its new niece/nephew as soon as possible.
This case truly borders on the twilight zone, with the cast of characters, "system of justice," and twisted spiteful thinking on the part of some locals, media, "witnesses," "investigators," and let us not forget the Chief Investigator running for election, who sold his soul to the devil for his own personal gratification, unchecked by this wonderful system in Durham.
http://jones.house.gov/release.cfm?id=466
For Immediate Release
Tuesday, December 19, 2006
Print Document Contact: Kathleen M. Joyce
202-225-3415
Close Window
JONES RENEWS CALL FOR FEDERAL PROBE AS NEW EVIDENCE EMERGES IN CASE AGAINST DUKE ATHLETES
Washington, D.C. – In a letter yesterday to U.S. Attorney General Alberto Gonzales, Third District Representative Walter B. Jones (R-NC) reiterated his December 7th request for a federal inquiry into Durham County, North Carolina District Attorney Mike Nifong’s prosecution of three Duke University student athletes accused of an alleged sexual attack on a woman at a party earlier this year. Specifically, Rep. Jones asked the Attorney General to review new evidence that Mr. Nifong withheld exculpatory DNA results from the defendants to determine if his conduct has illegally denied the students their civil rights as U.S. citizens under federal law.
“In a December 7th letter I asked you to look into Durham County, North Carolina District Attorney Mike Nifong’s prosecution of three Duke University student athletes accused of an alleged sexual attack on a woman earlier this year in Durham,” Jones wrote. “New evidence of potential prosecutorial misconduct emerged during court proceedings last week when it was revealed that Mr. Nifong withheld exculpatory DNA results from the defendants. These findings reinforce the appearance of a pattern of misconduct that may have denied these students their constitutional rights as U.S. citizens under federal law. This matter cries out for oversight, and I again urge you to launch a federal investigation.”
“In an article on the court proceedings in last Saturday’s Raleigh News and Observer – a copy of which I’ve attached for your review – it is reported that the ‘head of a private DNA laboratory testified Friday that he and District Attorney Mike Nifong agreed last spring not to report DNA results favorable to Duke lacrosse players charged with rape,’” Jones continued. “The article states that the lab’s testing showed DNA material collected from the accuser just hours after the alleged attack did not come from any of the defendants. But lab director Brian Meehan testified that he and Mr. Nifong decided not to include that evidence in their report to the defense despite the fact that ‘North Carolina law requires Nifong to hand over all evidence.’”
“Mr. Attorney General, I was encouraged to see that on Fox News yesterday you confirmed that you ‘received’ my December 7th letter and that the Justice Department is evaluating the facts it presents. The new revelations of potential prosecutorial misconduct exposed in last week’s court proceedings also require the Justice Department’s attention,” Jones concluded. “At the request of a growing number of my constituents, I again urge you and your staff to fully investigate these matters to ensure that Mr. Nifong’s conduct has not illegally denied these students their constitutional rights to due process.”
For additional information or to schedule an interview with Congressman Walter B. Jones please contact Kathleen Joyce at (202) 225-3415.
You're right. He did.
Now the lab is another story.
I agree with all that. I know he's buddies with Liefong. No dispute, and I've mentioned before that he is. I disregard anything he says about Liefong. But what he says about the case procedurally is unrelated to that.
My point is that he isn't lying about NC law or what goes on there. The other panelists ask him procedural questions about NC law, and he answers. In that respect he offers a valuable window into NC law and what is possible and probable. So far, he hasn't lied in those answers. If he did, it'd be real bad for his credibility which is something a lawyer needs to survive. If a lawyer tells another lawyer A is A, if A turns out not to be A, the lawyer who said it is toast.
Lawyers like Vann work within the framework they're given. They go along to get along. In a state with laws like NC has, that makes them all enablers. I will venture a guess that the vast majority of state legislators there, over the years, are former prosecutors, because the power of the DA and lack of oversight and review of NC DAs is rather astonishing - a prosecutor's dream if he wants to play fast and loose.
I couldn't care less how Vann personally feels or what his relationship with Liefong is. His commentary as an established local defense lawyer serves a useful purpose as a window into the technical movement of the case through his explanations about procedure. For me, that (not Vann himself) has value. He could be a robot sitting there giving answers, and that'd be fine, too.
As for Vann finally coming out and opining that the ID will be tossed, keep in mind the motion to accomplish that was only filed last week.
Surely as a logic-based economist, you understand what I'm saying. It's a matter of pragmatism, not emotional responses to the man himself.
http://www.foxnews.com/story/0,2933,237608,00.html
Immunity May Not Protect Duke Prosecutor
Tuesday , December 19, 2006
By Wendy McElroy
Michael Nifong, the prosecutor handling the Duke lacrosse rape case, may single-handedly cause a reconsideration of ‘absolute prosecutorial immunity,’ the legal doctrine by which certain acts of a prosecuting attorney are literally immune from lawsuits or criminal charges.
The doctrine is intended to protect prosecutors from frivolous and retaliatory actions. District Attorney Nifong’s crusade to convict three white Duke students of raping a black woman (race is a key factor in the case) has been so outrageous, however, that it reveals how the immunity invites and rewards abuse.
Is Nifong absolutely immune for his bad acts, even intentional ones?
Before answering, it is useful to review some of those acts and to consider why subtleties of immunity are important at this point in the case.
Three recent revelations are indicative of Nifong’s behavior.
Last week, it was discovered that Nifong withheld "key DNA evidence" from defense attorneys for six months despite a legal requirement for immediate disclosure. The DNA results exclude the defendants but include "multiple" other men as sex partners of the accuser around the time of her alleged rape.
On Dec. 15, Brian Meehan, head of a private DNA lab, testified under oath that he and Nifong agreed not to report exculpatory DNA results to the defense. They conspired to hide evidence that weakened the prosecution’s case.
Meanwhile, as of Oct. 27 (and presumably to this day), Nifong hadn’t even interviewed the accuser about her alleged rape.
Why are subtleties of immunity so important now?
Immunity was never intended to shield intentional or egregiously bad acts by prosecutors. Check and balances in the legal system-- for example, the power of State Bar Associations to disbar -- are supposed to prevent abuse.
People have tried to have Nifong sanctioned on a state and local level. To date, the North Carolina State Bar Association has received at least 17 complaints about Nifong. Because such complaints become public only when copied to the governor or attorney general, there may be many more.
State bar associations are seen as checks upon the legal immunity granted to prosecutors because they have the power to sanction and disbar. North Carolina has not acted.
Nor will officials. For example, Gov. Mike Easley is responsible for initially appointing fellow-Democrat Nifong to the office of D.A.. Easley’s upcoming election will depend on the same voter bloc that recently elected Nifong: working-class blacks. Easley is unlikely to alienate his base.
Thus, there is a growing cry for federal intervention on the grounds that the defendants have been willfully deprived of their Constitutional rights: specifically, the 5th and 14th Amendment protections of Due Process.
Duke defense attorney Michael Cornacchia -- the chief investigative counsel into the United Nation's oil-for-food scandal -- has requested a federal investigation. Rep. Walter Jones, R-N.C., has written to U.S. Attorney General Alberto Gonzales also asking for a federal investigation.
The demand draws energy from the fact that Duke will not go away.
News stories break on a daily basis. The latest court hearing was standing-room only, with national press crowding in. For the first time, in a show of solidarity, the three defendants appeared in court together.
Even if the judge dismisses the case, the defendants will almost certainly take whatever action they can against those responsible for the ordeal.
With Nifong, they will stumble over federal precedents of "absolute prosecutorial immunity" that immunize him against consequences for his behavior as a prosecutor. The qualification is key. The main question about Nifong’s immunity is not whether he committed misconduct-- he clearly did -- but what function was he serving when he did so.
The Supreme Court case Imbler v. Pachtman (1976) is often cited in discussion of prosecutorial misconduct. There, the court distinguished between "those aspects of the prosecutor's responsibility that cast him in the role of an administrator or investigative officer rather than that of advocate" [that is, a prosecutor]. It is only as a prosecutor that a D.A. has absolute immunity.
Otherwise, his immunity is qualified; he is not automatically immunized against misconduct that he should have known was a violation of law.
In short, Nifong’s immunity hinges upon the role he was playing when he acted, not upon the actions he took. For example, most of the press conferences held by Nifong occurred before an indictment was sought-- that is, before he became an advocate in a prosecution. The case was in the investigative phase. If the defense can prove Nifong knowingly made false statements then, prosecutorial immunity won’t necessarily protect him against a suit.
Consider the tainted photo I.D. upon which the indictments drew.
It was widely reported that Nifong directed the police to violate their own suspect-identification procedures.
Namely, he omitted non-suspects from the photo lineup and the accuser was told that all photos were of Duke lacrosse players who had been at the scene of the alleged rape. If this is true, then Nifong acted as an investigator and has qualified immunity.
The very fact that it is necessary to jump through hoops in order to address Nifong’s blatant abuse, however, highlights the problem with granting blanket immunity to anyone in power.
If prosecutorial misconduct were rare, then the situation might not be so disturbing. In an essay entitled "Reconsidering Absolute Prosecutorial Immunity" (Brigham Young University Law Review, 2005), legal scholar Margaret Z. Johns observed, "a 2003 study presents alarming evidence of the frequency of prosecutorial misconduct resulting in the wrongful conviction of hundreds of innocent people. This conclusion is reinforced with the ongoing investigation by the Innocence Project…which reported that, as of January 2005, 154 people who served time in prison for crimes they did not commit have been exonerated by DNA evidence. In many of these cases, prosecutorial misconduct contributed to the wrongful convictions….[O]ne can no longer dismiss the problem of prosecutorial misconduct as infrequent nor pretend that sufficient safeguards exist in the system to protect the innocent from wrongful convictions."
Absolute immunity was never meant to suppress evidence, dilute police procedure, or violate civil rights. But when checks and balances within the system refuse to work, then it becomes a blank check on the use of power.
Wendy McElroy is the editor of ifeminists.com and a research fellow for The Independent Institute in Oakland, Calif. She is the author and editor of many books and articles, including the new book, "Liberty for Women: Freedom and Feminism in the 21st Century" (Ivan R. Dee/Independent Institute, 2002). She lives with her husband in Canada.
http://www.lincolntribune.com/modules/news/article.php?storyid=5701
Opinion : Duke Rape Case Could Create Major Civil Liability Not Only For DA Nifong, But Also For Durham County
by Professor John F. Banzhaf III
As the rape case against three Duke lacrosse players continues to unravel, and instances of apparent prosecutorial misconduct multiply, it appears increasingly likely that the accused students will be able to recover civil damages against the county and perhaps also the district attorney, says the public interest law professor who has successful orchestrated legal actions against several major governmental figures, including former Vice President Spiro T. Agnew.
"Although prosecutors generally enjoy absolute immunity from civil liability for violating the constitutional rights of defendants, there are instances -- and this may well be one of them -- where that immunity doesn't apply," says Law Professor John Banzhaf. Moreover, Durham County, NC, does not have absolute immunity, and so the county could be held liable for millions of dollars in civil damages even if District Attorney Michael Nifong is protected from law suits, notes Banzhaf.
"Generally, district attorneys -- acting within their narrow role as prosecutors -- have absolute immunity, and cannot be sued even if they violate a defendant's constitutional rights intentionally, in bad faith, and with malice. This means that, even if it can be proven that Nifong engaged in gross prosecutorial misconduct in prosecuting the students while knowing they were innocent, and did so wrongfully and only for political purposes, he might not be held civilly liable."
On the other hand, the U.S. Supreme Court has carved out an exception when a prosecutor is acting not as an "advocate" performing functions intimately connected with the judicial phase of the criminal proceeding, but rather as an "investigator" or "administrator." In such cases he enjoys only a qualified immunity, and can be held liable if his misconduct violated clearly established legal standards of which a reasonable prosecutor would have known.
Under this so-called functional approach, actions taken before probable cause is established make the prosecutor an "investigator," entitled only to qualified immunity. After probable cause is established, a prosecutor may be acting as either an "investigator" or an "advocate," depending on the function being performed, and thus the function being performed after probable cause has been established determines whether or not absolute immunity applies.
For example, since only qualified immunity applies to functions such as providing legal advice to the police and cooperating in police investigative work, prosecutors who conspire with police to fabricate evidence during the preliminary investigation, or made false statements of fact in an affidavit supporting an application for an arrest warrant, may enjoy only qualified immunity -- and thus be held liable. It would also appear that granting numerous interviews with the media is outside the protected role of an advocate, especially if the information goes far beyond what is stated in official court documents, and includes even name calling.
Even if Nifong is found to be shielded from civil liability by absolutely immunity, such immunity does not apply to the county which he represents, so Durham County, NC, could wind up being civilly liable even in Nifong escapes liability. Considering the emotional suffering -- not to mention the legal and other out-of-pocket expenses -- this criminal proceeding has subjected the defendants to, a jury could award a very significant verdict to compensate them, says Banzhaf.
Congressman Walter Jones [R-NC] has called for a federal investigation to determine if Nifong's actions constituted prosecutorial misconduct and denied the students their civil rights. In his letter to the Department of Justice, he spells out allegations which could make Nifong personally liable:
"First, Mr. Nifong directed the Durham Police Department to knowingly violate suspect identification procedures for police personnel in North Carolina," Jones continued. "These procedures require that during any suspect identification process, a suspect's photo must be shown with those of non-suspects. Mr. Nifong not only directed that this not be done, he also directed the police to tell the accuser that she would only view photos of Duke lacrosse athletes who were at the party. By doing so, Mr. Nifong ensured that the accuser could not make a mistake no matter who she identified because she would inevitably identify Duke athletes."
Since all these actions occurred during the initial investigatory phase, Nifong cannot claim absolute immunity with regard to them, notes Banzhaf.
More recently, the head of a private DNA laboratory said under oath that he and Nifong agreed not to report DNA results favorable to Duke lacrosse players charged with rape, even though this violated the protocols of his own lab.
Moreover, the U.S. Supreme Court, and the Rules of Professional Conduct governing N.C. lawyers, require prosecutors to give the defense all favorable evidence. N.C. law goes further by requiring Nifong to hand over all evidence. Since these actions appear to have involved investigation and administration -- rather than the prosecution of the case -- Nifong may likewise not be entitled to absolute immunity with regard to this action.
Professor John F. Banzhaf III
Professor of Public Interest Law
George Washington University Law School
FAMRI Dr. William Cahan Distinguished Professor
http://banzhaf.net
Stellar post. Thanks.
I see Mangum folding before the hearing, or coming up with a medical excuse for not testifying that day and the matter being continued, possibly for months.
I think Nifong is hanging onto the hope of a shamelessly biased black Durham jury to pull his bacon out of the fire, so I think he will do whatever it takes, including engaging in further misconduct if necessary, to get this case to trial.
That splash you just heard was the sound of Mike Nifong being thrown overboard by the legal community.
They're starting to come out of the woodwork now. This man will be dethroned from his catbird seat of tyranny.
Perhaps from the narrow standpoint of the law, she 'gets it' but the larger issue, she avoids. What Nifong is doing is nothing new and has been done far more times in the past than we want to even know. Estrich does not address Nifong's motives.
That is the ugly story that needs to be told, and I doubt Estrich has the courage of Harper Lee to actually to go there.
What was wrong 100 years ago is just as wrong today. But that does not mean it can't happen today.
I hope you're right. The article that said Easley (sp?) will support Nifong because he doesn't want to alienate black voters may not be correct. If this case is toast (imho it's burnt toast, btw), and Easley throws Nifong under the bus soon enough, he can certainly spin-it to his advantage: I helped to get rid of this guy because he screwed-up the Duke case. (Many voters have short memories; they won't remember that it was Easley who appointed him DA in the first place; or, they won't care.)
Let's see:
1. "I wuz only following orders" ony works some of the time. And the related "it is the system we have" excuse does not cut much ice with me with NC now. The "following orders excuse" does not get you out from under the judgement of history when you were running Auschwitz or prosecuting the Scottsboro boys. In my view Nifong and his enablers will not be viewed very well by history. Sure Vann, the DA in Scottsboro in the 1930s, the guard at Auschwitz could probably not really change things. But if you don't try and note an honest judge in Alabama in the 1930s did delay executions enough that none of the Scottsboro boys were ever executed, you can't know you can not change things. And the guard in Auschwitz probably had less of a chance to change things than the DA in Scottsboro or guys like Woody Vann in Durham. The US now nor in 1930s AL is/was not Nazi Germany.
2. I agree that Nifong is now being thrown over board by more and more attorneys and even a few prosecutors.
PS the motion to toss the IDs was file last summer, June as I remember. Yes the defense updated it with a new motion now that even more information is know. But a motion to toss the ID because Mangum was presented photos of only Duke lacrosse players and told as much and that she failed to pick out the defendents in earlier photo arrays has been wasting away in the case for more than six months.
From McElroy :
"Gov. Mike Easley is responsible for initially appointing
fellow-Democrat Nifong to the office of D.A.. Easley’s
upcoming election will depend on the same voter bloc
that recently elected Nifong: working-class blacks.
Easley is unlikely to alienate his base."
Gov. Easley (former DA and NCCU law grad, wife on
NCCU law faculty) is a lame-duck, second term ending
2008. May run for US Senate.
Note the ongoing Federal investigations and trials
surrounding the good governor, House Speaker Black,
now bounced- the lottery scandal, etc.
Nifong's political support now comes from the black
state legislative delegations in Raleigh, whom as usual
hold the swing vote.
This is where the State of North Carolina will now
continue to screw good ole Duke University.
I have a way to sue Nifong that I think a court might accept. One of the tort lawyers should argue that DA Nifong who has immunity made NO, ie ZERO, decisions in this case or at least NO decisions in this case until after early November 2006. The person making ALL decisions in this case was CANDIATE Nifong who does not have immunity of any kind.
It would help this argument if they could find evidence of Nifong making decisions on this case or discussing them on the campaign trail and didn't he comment on the case at a candidate's forum at NCCU? They would also be helped if they could find Nifong making other campaign phone calls and decisions at his office. They need to subpeona his phone logs now.
The could further argue that after early November 2006, it was potential criminal defendent Nifong making decisions to prolong the case. I am not as sure a judge might buy that.
But everyone in the whole world KNOWS that Nifong made all decisions about this case based on politics from the beginning until after the election. DA Nifong has immunity. Candidate Nifong does not. A well crafted argument by an attorney to this affect before a friendly judge in NJ or someplace like that might find a receptive judge and we could see later what the higher courts would say when Nifong appealed.
You've totally lost me. I have no idea what the old "I was just following orders" excuse has to do with Vann. He's just a pud in the local defense bar. He's not in the legislature, he's not a prosecutor, he's not a state bar officer, and he's not in the judiciary. Those are the enablers. To me, he's just an answering machine. To you, he's Hitler. :>
Anyway, I give up trying to explain this. It's not important.
Nope Vann's excuse is that "its just the system we have." That is a related but not quite the same excuse as the "I was only following orders" excuse.
And of course Vann is not Hitler, he is one of the millions of silent witness who was too chicken, to busy making money off this system to speak up. His choice, I only said that I did not think history would treat him or the rest of the NC bar any better on this than it has the AL bar of the 1930s on the Scottsboro boys. Now, I guess most people don't think much about what is right or their place in history. That is fine, but I certainly have my opinion of the Nifong enablers.
Powerful stuff.
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