Posted on 01/24/2007 2:03:39 PM PST by Sleeping Freeper
RALEIGH, N.C. (AP) -- The state bar dramatically expanded its ethics complaint Wednesday against the prosecutor who brought sexual assault charges against three Duke lacrosse players, accusing him of withholding evidence from defense attorneys and lying to both to the court and bar investigators.
Durham County District Attorney Mike Nifong -- who recused himself from the lacrosse case earlier this month -- could be disbarred if convicted.
"There's no question that these new charges have significantly increased the chances for a serious sanction, possibly including suspension or disbarment," said Thomas Metzloff, a Duke law professor and member of the bar's ethics committee, which is not involved in prosecuting the case against Nifong.
The North Carolina State Bar had previously cited Nifong, who has spent his entire 28-year career as a prosecutor in Durham, with violating professional conduct rules by making misleading and inflammatory comments about the athletes under suspicion.
The new charges are all tied to Nifong's decision to hire a private lab to conduct DNA testing as part of the investigation into allegations three men raped a 28-year-old woman hired to perform as a stripper at a team party last March.
Those tests uncovered genetic material from several men on the woman's underwear and body, but none from any lacrosse player. The bar complaint alleges those results weren't released to defense lawyers and that Nifong repeatedly said in court he had turned over all evidence that would potentially benefit the defense.
Nifong made "knowingly false statements of material fact" both in court when asked about the test results, and to the bar's grievance committee as it investigated his actions. Those actions constitute a "systematic abuse of prosecutorial discretion ... prejudicial to the administration of justice," the complaint read.
(Excerpt) Read more at myfoxwghp.com ...
We see what Fitz is doing to Scooter Libby, and we wonder why Nifong and Sandy Burger aren't on trial. And Durbin and Rockefeller and.......the Clintons....
Democrats. They protect their own while harrassing Republicans, who aid and abet the rats every chance they get.
Scooter Libby
Tom Delay
Rush Limbaugh
And that's just recently.
Don't be surprised if the AG prosecutors take the case to trial. Even if they don't, they're not going to dismiss for several months.
"I believe Nifong will take the following tack in respect of the withholding evidence charge: that the DNA matches to other men were not materially relevant to the case, and that only the evidence that there were no DNA matches to the lacrosse players was material."
It doesn't matter what he thought or what his reasoning ostensibly was, or what he thought was material. He doesn't get to decide on behalf of the defense what is material or what is admissable on behalf of the court. NC law is clear: all forensic evidence and forensic testing results MUST be turned over to the defense, period, end of story. There are no exceptions for sexual assault or rape cases. Further, the state bar has charged that it was a deliberate effort to conceal the evidence and that he lied on FIVE occasions to the court about it what he knew, when he knew it, and his excuses for failing to follow the law.
In addition to all that, there is an exception in the rape shield law to evidence of sexual activity contemporaneous to the alleged events charged. In this case, the evidence of sexual contact with a a number of men contemporaneous to the alleged event could and would explain the slight vaginal swelling and is certainly relevant and material to the theory the defense has prepared, so the impeachment aspect that you cited wasn't all that was at stake in terms of the undisclosed DNA evidence.
Nobody is going to buy the "good faith" defense. The evidence is to the contrary. Nifong has already tried to explain his behavior and got himself into more trouble with those lies. It's being reported now that he lied to the state bar as well.
He can't continue as DA if he is suspended.
bttt
It's not going to fly at all. See my #23 to SirJohn.
The law is clear. The DA doesn't get to decide what's admissable nor does he get to decide what's relevant or material to the defense, especially when the defense has already filed the necessary notices that they intend to put forward an affirmative defense, which the defense did indeed do in this case.
Nifong doesn't have a leg to stand on.
Here's another thing: Nifong has known about the state bar case for months (and thus his ongoing conflict of interest), but didn't recuse until his shenanigans with the DNA report came out. That tells us a lot about his thinking on his position in the case. It tells us that he knew he had to remove himself from a position where he had to continue lying in order to not admit violating the law. I think he thought he'd bluster through the first round of ethics charges, but the 12/15 revelations and the lies that followed were sinking him. He recused so he could stop digging, not because of the conflict of interest. The conflict was in play for several months before the 12/15 testimony and his further perjuries.
"As I say, to escape the worst penalty from the bar commission I don't think he has to prove that he would have succeeded on his legal positions in court, only that he believed in these positions in good faith. I don't know who is on the committee, but any feminist-leaning judges or law professors will be somewhat sympathetic to this rationale for not turning over the complete DNA report."
The "good faith" argument won't fly for the reasons I've already cited, but even if it could succeed, it isn't believable because of the lies he told with regard to not turning the evidence over and conspiring to not turn it over. Those lies show an acute consciousness of guilt about the entire matter, and the state bar knows it. In October, Nifong stated before the court and in a written declaration that he had in fact turned over every single bit of discovery he had possession of or was AWARE of. Then, when caught, he lied to the court by giving the court a series of different and conflicting excuses as to why he didn't turn the full DNA results over. He's boxed himself in this time, and that's why "good faith" won't work and it's why he recused.
Precisely.
It would be spectacular if dereliction of duty was added to the charges. It would in essence be saying that if she was raped, Nifong had failed to pursue identification and apprehension of the perpetrators after the DNA evidence exonerated the lax boys.
And don't forget that we haven't even gotten to the photo line-up violations yet. There's more trouble in store for Nifong when that hearing rolls around, which will probably be put off from 2/5.
Let's see what Himan, Gottlieb, Wilson and the others have to say when they get subpoenaed to testify at the hearing.
In my #28 to you, I'm not saying dereliction is even a possible charge. I was mostly fantasizing. ;>
Great news! I'll have to go look for some threads on the case.
But even if it's going well, Libby shouldn't have to be going through this, or had to have given up his job, spend big $ on a defense, and have his family put through all of this. It's a disgrace. I think back to Bush assuring us of confidence in Fitz to do the right thing, blah blah blah, and just look at this debacle. Bush played right into the rats' hands by appointing Fitz, just like he was had by Putin and Vicenzo Fox.
I'm so disgusted I can hardly see straight.
Nifong isn't just an "opposing counsel" in a case, he's the prosecutor acting under the color and authority of law. He was elected to the office and swore to uphold the law.
Every lawyer going into court is responsible for knowing the law relevant to cases they are involved in; moreso a DA who is, or should be, held to a higher standard. With the power (and financing) of the government behind him he is in a position to destroy lives (as he did) in a way no private practitioner could do.
The bar's message should be loud and clear to prosecutors across the country, that they have a responsibility to use the power granted to them, and the taxpayers' money, in the most judicious manner possible. Nifong did quite the opposite.
Yes ... double standards.
http://www.newsobserver.com/1185/story/438305.html
Published: May 11, 2006
Lacrosse defense witness arrested
Cabbie questioned in 2003 incident
Taxi driver Moezeldin Elmostafa said Investigator R.D. Clayton and another officer asked whether he had anything new to tell them about the rape case before driving him to the Durham County jail. He said no and was held for five hours, until a friend posted his bail on a shoplifting charge.
Ernest Conner, a Greenville lawyer who represents defendant Reade Seligmann, said the cabbie's arrest amounted to intimidation. "It appears to me they are trying to pressure a witness who supports our defendant's rock-solid alibi," Conner said.
Sgt. Mark Gottlieb, the supervisor of the investigation, refused to answer questions Wednesday night.
Elmostafa signed a sworn statement in April saying he picked up Seligmann from a Duke lacrosse team party just after midnight March 14. Seligmann and another player, Collin Finnerty, have been charged with raping an escort service dancer during the party at 610 N. Buchanan Blvd.
Elmostafa's affidavit said he picked up Seligmann at 12:19 a.m. that morning and drove him to an automated teller machine, a fast-food burger joint and back to his dorm. To corroborate the taxi driver's statement, Seligmann's lawyers filed copies in court of phone records, security photos from the ATM and electronic records showing when Seligmann entered his dorm.
The lawyers have said that Elmostafa's account and the records exonerate Seligmann.
Clayton, who is working under Gottlieb on the case, picked up Elmostafa on Wednesday afternoon.
"The detective asked if I had anything new to say about the lacrosse case," Elmostafa said. "When I said no, they took me to the magistrate."
2003 charge
Elmostafa was charged with a misdemeanor larceny that occurred Sept. 2, 2003, when a woman stole five purses worth $250 from the Hecht's department store at Northgate Mall.
Elmostafa said Wednesday that he had picked up Lisa Faye Hawkins and her daughter at their home and had taken them to the mall. Elmostafa said he waited in the taxi with the daughter while Hawkins shopped and then he drove the two home.
Elmostafa said he later received a call asking him to speak with Hecht's security. The security officer at Hecht's said Hawkins had stolen some purses before getting into the taxi, Elmostafa said.
Elmostafa said he gave the woman's address and a copy of his driver's license to the security guard, who thanked him for his help.
"I am not responsible for what she did inside the store," Elmostafa said. "I am just a taxi driver."
Hawkins pleaded guilty to the larceny three months later.
Elmostafa said he heard nothing about the case until his arrest Wednesday. He spent five hours at the Durham County jail before a friend put up $700 for the bail.
A Hecht's spokesman could not be reached Wednesday evening.
Conner said it was highly unusual for police to arrest someone for a misdemeanor more than two years after the crime. He contrasted the treatment of the taxi driver with that of Kim Roberts, the other dancer at the party. Conner said Roberts initially told police no rape occurred at the party but changed her story after she was arrested on a probation violation. District Attorney Mike Nifong later reduced Roberts' bail.
You're arguing the substance of the matter, which I'm not disputing. I personally believe Nifong acted in bad faith, and as I said in the posts you read I think he would LOSE on the merits on these legal questions in court (except, as I've said in other threads, on the federal constitutional question as to the photo lineup based on what we know so far).
Were I on the bar disciplinary commission, I would vote for Nifong to be permanently disbarred. Were I the NC AG, I would be researching criminal charges I could bring against Nifong.
But it doesn't matter what you or I would do to Nifong, neither of us is a voting member of the disciplinary commission. My post was a prediction of the what Nifong's defense will be and what the bar commission will conclude.
I stand by my prediction: The bar commission will find that Nifong was guilty of extremely poor judgment and deviation from professional standards and the worst penalty Nifong will receive will be a temporary suspension of his license, for at most a couple of years.
I do NOT expect the disciplinary commission to permanently disbar Nifong.
Answer: On its face, the natural reaction would be to say "of course." How can one be a "District Attorney" if one is not even an "attorney?"
However, a good lawyer will have learned not to assume that the obvious, common-sense answer is necessarily the one the law provides, and the question would be researched and the answer not merely assumed.
Of course, any honorable person would resign the office of District Attorney if that person has his law license suspended or is disbarred.
But what if Nifong refuses to resign as DA in these circumstances?
The starting point for the qualifications of North Carolina District Attorneys is the NC Constitution:
Sec. 18. District Attorney and Prosecutorial Districts. (1) District Attorneys. The General Assembly shall, from time to time, divide the State into a convenient number of prosecutorial districts, for each of which a District Attorney shall be chosen for a term of four years by the qualified voters thereof, at the same time and places as members of the General Assembly are elected. Only persons duly authorized to practice law in the courts of this State shall be eligible for election or appointment as a District Attorney. The District Attorney shall advise the officers of justice in his district, be responsible for the prosecution on behalf of the State of all criminal actions in the Superior Courts of his district, perform such duties related to appeals therefrom as the Attorney General may require, and perform such other duties as the General Assembly may prescribe.
Well that settles it, doesn't it?
Well, no actually. Because Nifong WAS duly authorized to practice law, and therefore eligible to be a DA, AT THE TIME OF HIS ELECTION, Nifong has an argument that he technically has satisfied the requirement.
There may well be a case out there that does indeed make the common-sense holding that a DA who is no longer a licensed attorney must immediately resign, but I think more likely the courts would look to the DA removal statute, which is the expression of the legislature's intent as to how a District Attorney should be removed from office:
N.C. Gen. Stat. Section 7A-66. Removal of district attorneys.
The following are grounds for suspension of a district attorney or for his removal from office:
(1) Mental or physical incapacity interfering with the performance of his duties which is, or is likely to become, permanent;
(2) Willful misconduct in office;
(3) Willful and persistent failure to perform his duties;
(4) Habitual intemperance;
(5) Conviction of a crime involving moral turpitude;
(6) Conduct prejudicial to the administration of justice which brings the office into disrepute; or
(7) Knowingly authorizing or permitting an assistant district attorney to commit any act constituting grounds for removal, as defined in subdivisions (1) through (6) hereof.
A proceeding to suspend or remove a district attorney is commenced by filing with the clerk of superior court of the county where the district attorney resides a sworn affidavit charging the district attorney with one or more grounds for removal. The clerk shall immediately bring the matter to the attention of the senior regular resident superior court judge for the district or set of districts as defined in G.S. 7A‑41.1(a) in which the county is located who shall within 30 days either review and act on the charges or refer them for review and action within 30 days to another superior court judge residing in or regularly holding the courts of that district or set of districts. If the superior court judge upon review finds that the charges if true constitute grounds for suspension, and finds probable cause for believing that the charges are true, he may enter an order suspending the district attorney from performing the duties of his office until a final determination of the charges on the merits. During the suspension the salary of the district attorney continues. If the superior court judge finds that the charges if true do not constitute grounds for suspension or finds that no probable cause exists for believing that the charges are true, he shall dismiss the proceeding.
If a hearing, with or without suspension, is ordered, the district attorney should receive immediate written notice of the proceedings and a true copy of the charges, and the matter shall be set for hearing not less than 10 days nor more than 30 days thereafter. The matter shall be set for hearing before the judge who originally examined the charges or before another regular superior court judge resident in or regularly holding the courts of that district or set of districts. The hearing shall be open to the public. All testimony shall be recorded. At the hearing the superior court judge shall hear evidence and make findings of fact and conclusions of law and if he finds that grounds for removal exist, he shall enter an order permanently removing the district attorney from office, and terminating his salary. If he finds that no grounds exist, he shall terminate the suspension, if any.
The district attorney may appeal from an order of removal to the Court of Appeals on the basis of error of law by the superior court judge. Pending decision of the case on appeal, the district attorney shall not perform any of the duties of his office. If, upon final determination, he is ordered reinstated either by the appellate division or by the superior court upon remand his salary shall be restored from the date of the original order of removal.
So if Nifong is disbarred and refuses to resign, what likely will happen is a removal action under 7A-66 will be instituted in the courts.
The best interpretation of the statute, to my mind, is that Nifong would come under clause (3). The reasoning would be that Nifong is incapable of performing his duties because performing his duties necessarily requires actions that involve the practicing of law. However, it is not inconceivable, though unlikely to my mind, that a court would conclude that it is possible for a district attorney to discharge his duties through the use of subordinates who are licensed to practice law. There is probably case law out there directly on point on this question, if not in North Carolina, then in other states.
In the latter case, Nifong could still be removed under clause (6), or even clause (2). However, I doubt the court would treat any opinions issued by the Bar Disciplinary Commission as conclusive for purposes of the requirements of these clauses, and would rather require that the issues be argued before it de novo and the court would reach its own conclusions.
Thanks. Glad to hear it. There are two issues here. One is the law, the other is political influences on the law. The law can be, and often is, overridden or simply never invoked if the dominant establishment decides to do so. In this case, it appears to me that Nifong has lost any and all support of the political and legal establishments, and that's very good news.
It's also good news that, as you argue, he has broken the law and has no plausible excuses. That has certainly has seemed to be the case to me, and lying to the judge about it can't help his case. At this point, the legal establishment either has to broom him out of office or be tainted with his public corruption.
Thanks. Glad to hear it. There are two issues here. One is the law, the other is political influences on the law. The law can be, and often is, overridden or simply never invoked if the dominant establishment decides to do so. In this case, it appears to me that Nifong has lost any and all support of the political and legal establishments, and that's very good news.
It's also good news that, as you argue, he has broken the law and has no plausible excuses. That has certainly has seemed to be the case to me, and lying to the judge about it can't help his case. At this point, the legal establishment either has to broom him out of office or be tainted with his public corruption.
Though the mills of God grind slowly,
Yet they grind exceeding small.
--Henry Wadsworth Longfellow, "Retribution"
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