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Ethics Complaints Against Nifong Expanded (Updated: More detail and commentary)
AP/Fox News 8 (North Carolina) ^ | 01/24/07 | Arron Beard

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 ...


TOPICS: Crime/Corruption; Government; News/Current Events; Politics/Elections
KEYWORDS: dukelax
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Maybe justice will finally be served. I wonder why the NC AG is taking so long? The case should've been dropped by now.
1 posted on 01/24/2007 2:03:41 PM PST by Sleeping Freeper
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To: Sleeping Freeper

It would be just delightful if the guy was disbarred...let other politicians know that standing beside Sharpton, the Tawana Brawley apologist, is not only dishonorable but can be a career killer.


2 posted on 01/24/2007 2:08:13 PM PST by foreshadowed at waco
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To: Sleeping Freeper
"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."

It looks like the bar wants to make an example of Nifong.

3 posted on 01/24/2007 2:09:25 PM PST by Anti-Bubba182
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To: Sleeping Freeper

It is also worth mentioning that he he intimidated the (Somali?) taxi-driver into changing his story - as well as enticing some comments from the other "dancer" early on as he gave her a break on something associated with her embezzlement case.....IIRC, it was a technical violation of her probation that was pending against her at the time.


4 posted on 01/24/2007 2:10:01 PM PST by Vn_survivor_67-68
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To: Sleeping Freeper

How can NiFong be ABOVE the law?


5 posted on 01/24/2007 2:12:02 PM PST by nmh (Intelligent people recognize Intelligent Design (God) .)
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To: foreshadowed at waco

I'd like to see him do some prison time as any person doing the stuff he did.


6 posted on 01/24/2007 2:12:46 PM PST by nmh (Intelligent people recognize Intelligent Design (God) .)
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To: Sleeping Freeper
I wonder why the NC AG is taking so long?

They were handed this smoking grenade what, a couple weeks ago? They're going to insure every i is dotted and t is crossed before they publicize their decision.

7 posted on 01/24/2007 2:32:35 PM PST by bcsco
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To: Sleeping Freeper
Hoist in his own petard......and I hear he is being quoted as saying, "I been Nifonged...man....!"
8 posted on 01/24/2007 3:03:20 PM PST by cbkaty (I may not always post...but I am always here......)
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To: Sleeping Freeper

Moving along nicely. Justice always takes its time, but there's no question now that the bar association, his fellow prosecutors, and local politicians with any influence have washed their hands of him. No one is going to help him cover up. It's too big an embarrassment to all of them.

I don't see how he can fail to be disbarred, lose his job, and become virtually unemployable. Whether he will be jailed or sued is still in question, but he has definitely wrecked his career. He did all this to make a name forhimself and get re-elected, and that has sure backfired on him.

I think he may even be forced to resign before these charges are resolved, or at least to relinquish his other cases until he is cleared, which is now extremely unlikely.

Small consolation for the lacrosse players, but I hope all those stupid Duke professors are feeling really bad, and that that one visiting professor who flunked one of the lacrosse players is never again rehired. They don't need to fire her; she's a visiting professor, which normally means a yearly contract, with no promises of further employment.


9 posted on 01/24/2007 3:07:25 PM PST by Cicero (Marcus Tullius)
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To: Sleeping Freeper
Meanwhile, a few Nifong supporters gathered today......

"

10 posted on 01/24/2007 3:22:55 PM PST by GoldCountryRedneck ("Idiocy - Never under estimate the power of stupid people in large numbers" - despair.com)
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To: nmh
How can NiFong be ABOVE the law?

....FOREVER...that is the Klintoons'...et. al. "Enduring Legacy"....Laws are for, the little people, not for Liberal Elitists.

11 posted on 01/24/2007 3:32:46 PM PST by skinkinthegrass (Just b/c your paranoid; Doesn't mean they're NOT out to get you. :^)
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To: Cicero

I think you're right, he's seriously damaged his career.

Nifong does have one thing in his favor in the bar proceeding: that the law and rules of evidence unfairly favor those who accuse others of sexual assault.

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.

This is an unreasonable position in my opinion, but it is consistent with the prevailing school of thought among legal theorists that evidence of promiscuity on the part of the alleged victim is not a legitimate issue for the defense to raise. Feminists have long complained that male rape defendants had in the past gotten a pass from juries in making reference to a victim's sexual history, and have succeeded in changing the rules of evidence on this point.

It is unreasonable in this case not only because the feminist position goes too far, but in this particular case, the alleged victim had claimed she had not had sex for a week (or two, was it?) prior to the alleged rape, so the evidence of DNA matches with other men impeaches her credibility (Nifong will have to respond that DNA can in theory be found on a person after a longer period of time than that).

So I think Nifong's achievable goal in the bar proceeding is not to demonstrate that he acted reasonably, but rather that he acted in what he saw as good faith.

If he successfully convinces the bar committee that he acted in good faith, even though unreasonably, I can see him getting by with a suspension and not permanent disbarment.

If he is suspended, he may even be able to continue as DA, since he has no boss to fire him. He would have to restrict himself to purely administrative duties and require his staff to handle all cases.


12 posted on 01/24/2007 3:56:53 PM PST by SirJohnBarleycorn
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To: SirJohnBarleycorn

This might conceivably help excuse withholding of evidence, but will it excuse lying to the judge about it?


13 posted on 01/24/2007 5:33:54 PM PST by Cicero (Marcus Tullius)
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To: Howlin; abb; JLS; Alia; ladyjane; Jezebelle

pingaroo


14 posted on 01/24/2007 5:57:17 PM PST by Enterprise (Drop pork bombs on the Islamofascist wankers. Praise the Lord and pass the hammunition.)
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To: skinkinthegrass

Through this thug into general population and see how long he lasts.


15 posted on 01/24/2007 6:09:24 PM PST by nmh (Intelligent people recognize Intelligent Design (God) .)
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To: Cicero

He's going to have to argue, I think, that when he said he turned over all the exculpatory evidence to the defense, that he meant only "relevant" and "admissible" exculpatory evidence, and that in his view the DNA evidence of sex with other men was not relevant and would not have been inadmissible.

He could even argue that the DNA matches with other men could not have been used by the defense to impeach the credibility of the alleged victim's statement that she did not have sex within the past two weeks, on the grounds that the no-sex-in-two-weeks statement would not be admissible in the first place (having to do with her sexual history, which is only admissible under certain narrow circumstances), so there would be no opportunity by the defense to impeach that statement at trial.

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.

What this case, the Ronnie Earle case and the Fitzgerald case demonstrate is how inadequate are the remedies we have for abuse of power by a prosecutor.


16 posted on 01/24/2007 6:17:26 PM PST by SirJohnBarleycorn
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To: SirJohnBarleycorn

meant "...was not relevant and would not have been admissible"


17 posted on 01/24/2007 6:25:07 PM PST by SirJohnBarleycorn
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To: SirJohnBarleycorn
He could even argue that the DNA matches with other men could not have been used by the defense to impeach the credibility of the alleged victim's statement that she did not have sex within the past two weeks, on the grounds that the no-sex-in-two-weeks statement would not be admissible in the first place (having to do with her sexual history, which is only admissible under certain narrow circumstances), so there would be no opportunity by the defense to impeach that statement at trial.

The fact that Precious seems to have had sex within hours of the alleged assault would certainly be relevant with regard to how she got the "diffuse edema". So I don't see any way Nifong could weasel out of things that way.

Actually, if one really wanted to nail Nifong, one could suggest that Precious was telling the truth about being raped without condoms, but was completely confused as to where and when it happened. That's actually the only scenario that makes sense which would involve Precious actually being sexually assaulted by anyone, but under that scenario the DNA is absolutely exculpatory; further, it raises the question of why Nifong seems to have no interest in doing anything about the actual rapists.

18 posted on 01/24/2007 8:49:58 PM PST by supercat (Sony delenda est.)
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To: supercat

Yes, the DNA matches are relevant to the question of how she received the supposed diffuse edema, just as they are relevant in that they impeach the credibility of her statements to police (claiming no sex for 2 wks).

But the important thing isn't whether Nifong would win or lose evidentiary rulings in the underlying case; I think he would lose those rulings.

As I said, Nifong doesn't need to make WINNING legal arguments on these points, his best defense in my opinion is to demonstrate that he took these actions based on his understanding (faulty as it may be) of the law, and not out of bad faith. IMO for Nifong, worst case is the bar commission concludes he acted in bad faith, and they disbar him permanently; best case is they conclude he was incompetent but acted in good faith, and he gets a serious censure and a temporary suspension (maybe 1-2 yrs) of his law license.

Remember, the disciplinary committee is NOT going to want to get drawn into considering the merits of the underlying case or considering the merits of evidentiary rulings; for example, they will not take any position as to whether Precious was telling the truth or which of her versions is most believable.

Nevertheless the members of the bar committee can easily imagine themselves in the shoes of defense counsel and will likely want to send a message throughout the bar that opposing counsel ought not to be playing games when it comes to sharing evidence with the other side.

As to the media statements, I think the bar committee will criticize Nifong for some of the statements, but they will not consider that as serious as the withholding of the DNA report, because so many lawyers (probably some on the bar commission) enjoy the attention brought by a high profile case and speaking to the press.


19 posted on 01/24/2007 9:58:54 PM PST by SirJohnBarleycorn
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To: Vn_survivor_67-68

Elmo (taxi driver) didn't change his story. He made a mistake on the time he went to the lax house on his SECOND call there that night, which was after he dropped Reade off so it really had nothing to do with Reade, and the correction actually helped the defense, not the prosecution.


20 posted on 01/25/2007 12:20:38 AM PST by Jezebelle (Our tax dollars are paying the ACLU to sue the Christ out of us.)
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