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 ...
http://www.chronwatch.com/content/contentDisplay.asp?aid=25691&catcode=13
Abuse of Power in the Duke Lacrosse 'Rape' Case
Written by Geoff Metcalf
Thursday, December 21, 2006
“The essence of government is power, and power, lodged as it must be in human hands, will ever be liable to abuse.”
--James Madison
Abuse of power under the color of authority is the most heinous, reprehensible act a person in authority can display.
I’ve tried to avoid comment on the Duke University Lacrosse team scandal but this now begs attention.
Despite North Carolina law which requires the district attorney (even Mike Nifong) to hand over ALL evidence regardless of whether it has been requested or not, it is now known that it didn’t happen.
Security director Brian Meehan, the head of a private DNA laboratory, has testified that he and D.A. Nifong agreed not to report DNA results favorable to those Duke lacrosse players charged with rape.
That is collusion, dissembling by omission, or more specifically, conspiracy.
Meehan’s testimony is sure to spark an excrement storm both inside and outside the courtroom for the manipulative D.A. Nifong.
This isn’t even a case of typical ''I do not recall'' selective memory loss. The district attorney didn’t even try to challenge Meehan's testimony. Rather, based on his myopic audacity and creative John Lovitt-like parsing, he claims that he didn’t withhold evidence. Huh?
According to slippery Mike, the defense could have asked for that material all along. Which begs the question: if the defense didn’t know about the material, how could they ask for it?
Remember North Carolina law requires Nifong to hand over all evidence… regardless of whether it has been requested or not…and, oh yeah, by the way, the evidence may well exonerate the accused.
DA Nifong is like a skinny little sapling at dusk casting a long twisted shadow. Or more precisely, as Abraham Lincoln observed, “Character is like a tree and reputation like its shadow. The shadow is what we think of it; the tree is the real thing.”
Sanctions for violating the law could/should (?) result in a dismissal of all charges against the three players. Nifong should also personally apologize to the accused, and resign.
I am not the Lone Ranger in suggesting Nifong needs to be disciplined or even prosecuted. I will be shocked if one or all of the effected lacrosse team families don’t sue Nifong, Duke, and Raleigh and North Carolina until the war on terror is over.
* Nifong’s public comments vilifying the lacrosse players have been inappropriate and over the top.
* His direction of a police photo identification lineup violated Durham PD policies.
* His withholding of exculpatory evidence by the DNA lab violates the lab’s policies.
In a letter to Attorney General Alberto Gonzales, Rep. Walter Jones also asked the Justice Department to review Durham County District Attorney Mike Nifong's actions for possible prosecutorial misconduct.
"Over the past several months, many of my constituents and a growing number of mainstream media outlets have raised serious questions about the accuser's allegations and Mr. Nifong's prosecution," wrote Jones.
"I tell you, the more you hear about his missteps, the more you have to question whether it's purely a matter of incompetence or worse," said James E. Coleman, a law professor at Duke University.
The professor is being cautious in a professorial way. The kind of selective incompetence displayed by Nifong suggests collusion and design. In other words, he is not merely incompetent but he (and his entire handling of the case) is “worse.”
Setting aside the lurid graphic details that Meehan finally revealed in his testimony that scream for a dismissal, the DA has shattered the lives of three apparently innocent young men for the worst of all possible motivations: political gain.
As if the Los Angeles-O.J-trial-goat-rope didn’t do enough harm to the public confidence in the rule of law, this bush league Machiavellian wannabe manufactured a case out of whole cloth to buy some headlines and ink.
Raleigh, North Carolina has become a metaphor for a grander and no less contemptible reality. Ralph Waldo Emerson once said, “The antidote to this abuse of formal Government, is, the influence of private character, the growth of the Individual; the appearance of the principal to supersede the proxy; the appearance of the wise man, of whom the existing government, is, it must be owned, but a shabby imitation.”
Is it “incompetence or worse” that virtually every time the government (any government at any level) issues an ''official'' delineation of what happened, it defies credulity?
Abuse of power under the color of authority should be elevated to at least felony level, regardless of whether it occurs in the highest or lowest levels of officialdom.
About the Writer: Geoff is an author and talk show host. He is a ninth generation commissioned officer in the U.S. Armed services, a former Green Beret, and retired U.S. Army Lieutenant Colonel. Geoff hunts down the stories the rest of the media ignores and exposes them for public scrutiny. He is also editor of CalNews.com.
"If you really want to stop paying attention to me, stop following me from thread to thread and writing posts to me."
Don't flatter yourself. Some of us here actually have a CONNECTION to this situation.
Typical LE logic: "Stay off MY beat!"
Your mindset differs very little from a street gang's.
Why don't you just start lifting your leg on threads that you think you own.
Thanks too for the FReep recognition:
Member:abb
Group: Members
Posts: 136
Member No.: 5
Joined: 23-August 06
To my knowledge, this is the first posting anywhere on any bulletin board, chatroom, or blog on the internet expressing skepticism of Nifong's story. We at FreeRepublic started intensively covering the story early on and have ever since - 24/7.
If anyone can dig up earlier public skepticism (other than the families, defense lawyers and team members) please post it. This is history that needs to be preserved...
Just going back to that early thread reminded me of what a mess this case hase been from the beginning! Thanks for all your efforts abb!
A small corner of Hell has frozen over. Temporarily.
The light of truth sometimes shines through the small cracks in a liberal shell.
Nifong's refusal to follow up with the other DNA identified gives another lie to his position that he is just prosecuting a standard rape accusation. If one did believe a rape occurred, it would be standard operating procedure to follow up with any DNA identified on the supposed victim. I am surprised that those insisting that “something happened” aren’t demanding follow-up with that DNA. Someone who believes a rape occurred would have to consider other parties that left sexual DNA as at least parties of interest, I'd think.
And even those demanding that “justice be allowed to take its course” know that victim misidenifcation and confusion related to suspects is not unknown, and demand that standard investigative procedure be followed to allow the law to work the way it is supposed to.
I think the reason we are not seeing inquiries in that direction by anyone who has been following this case, be they pro-Nifong or other wise, is because by now everyone knows what happened in that room - which was nothing.
Susan Estrich is the most schizophenic of all the leftist pundits. Usually, she is robotically spouting the usual politically correct brain dead democrat party propaganda. However every so often, she has flashes of brilliant insight and eloquence, as in this essay.
"...I truly believe America is beginning to get it..."
CG,
Yes, the America that pays attention seems to be catching on, but what about the MSM/Oprah/Maury/Jerry/Rosie/et al-watching masses, who seem to make up such a large segment of the population. For them, the list above constitutes their sole/main source of information AND opinion.
Unfortunately, all-too-many of these simplitons exercise their voting rights.
I fear for our future...
"...simplitons..."
simpletons
http://www.newsobserver.com/559/story/523895.html
Why the D.A. should be off the case
Joseph Kennedy
CHAPEL HILL - Whether the defendants in the Duke lacrosse case are guilty or innocent, Durham District Attorney Mike Nifong should disqualify himself, or be disqualified, from the case.
On Friday, Nifong's own witness essentially accused him of breaking the law. An actual conflict of interest now exists between Nifong's need to defend himself against possible charges of misconduct and his obligation to prosecute the case fairly and effectively.
In court Friday, the head of a lab that Nifong retained to analyze DNA samples testified that he and Nifong intentionally decided to exclude from the expert's report the fact that DNA analyzed from the clothes and body of the accuser did not belong to any of the defendants but came instead from unidentified males.
N.C. General Statute 15A-903 requires that a prosecution expert provide a report of the results of any tests performed and that the prosecutor furnish that report to the defense. Deciding to exclude these results is deciding to violate this law.
A prosecutor also has an obligation under the U.S. Constitution and under N.C. Rule of Professional Conduct 3.8 to disclose to the defense evidence which tends to suggest the innocence of a defendant -- including evidence that calls the credibility of a state witness into question. DNA results showing the absence of DNA material from the accused and the presence of DNA material from other men goes to the credibility of the accuser's account and therefore needs to be disclosed.
In addition to these disclosure requirements, a prosecutor has an ethical obligation not to ignore evidence which suggests the innocence of the accused. A comment to Rule 3.8 provides that "a prosecutor should not intentionally avoid pursuit of evidence merely because he or she believes it will damage the prosecutor's case or aid the accused." It is not clear that Nifong has ever followed up on the DNA evidence described.
• • •
North Carolina law provides for the disqualification of a prosecutor from a case only in the event of an actual -- not just potential -- conflict of interest. An actual conflict of interest appears to exist in this case because Nifong must either challenge the credibility of his own DNA expert's testimony or he must admit to intentional misconduct.
Nifong also has a vested interest in finding that the presence of DNA evidence of unidentified men on the body and clothes of the accuser does not call the credibility of the accuser's account into question, in order to minimize the significance of the evidence he did not disclose. This interest conflicts with Nifong's duty as a prosecutor to impartially evaluate this potentially exculpatory evidence. Prosecutors are ethically obliged to seek justice, not merely to convict.
Nifong has said that privacy concerns influenced his decision. Privacy interests do not justify violations of either the discovery statute or a prosecutor's constitutional and ethical obligations.
Nifong has also argued that the test results in question were disclosed when the defense specifically asked for them. Prosecutors do not get to play "Battleship" with their discovery obligations by requiring defense lawyers to score a direct hit with a discovery request. Prosecutors must affirmatively disclose what the law requires.
• • •
Nifong may not yet have fully told his side of the story. His account may differ from that of his DNA expert in ways that absolve him of intentional misconduct. His need to seek such absolution is the heart of the conflict, however. Disqualifying Nifong would free him to fully defend himself against charges of misconduct without compromising the fair prosecution of the case.
A finding of willful misconduct would carry particularly serious consequences for Nifong because he is not just a prosecutor but a district attorney. N.C. General Statute 7A-66 provides for the removal from office of a district attorney who has engaged in willful misconduct.
Disqualifying a prosecutor from a case is an extreme measure, although not as extreme as removing him from office or prosecuting him criminally, as U.S. Rep. Walter Jones has suggested.
Disqualifying Nifong from the case should not be interpreted as a victory for the defense or as a defeat for the accuser. The defense in fact might prefer that Nifong continue to handle the case on the theory that his credibility with the court and with the public has been compromised. If the defendants are guilty, a prosecutor who is not hamstrung by allegations of misconduct would be in a better position to secure convictions.
A prosecutor with a conflict of interest cannot produce a result in which the community can have confidence. Whether the defendants were eventually convicted or acquitted, Nifong's own ethical and legal troubles would taint the result.
The accuser, the defendants and the community are all entitled to an untainted result. A prosecutor's ultimate obligation is to the truth, and only prosecutors free of conflicts of interest should be entrusted with that obligation.
Look, I didn't think I'd be able to do anything but raise public awareness. Whether everyone feels as I do is irrelevant. I simply didn't want white, middle-class America to do what our little community did -- think it was a hiccup in the justice process and go back to watching "Dancing with the Stars." I spoke to many liberal and conservative lawyers in our county who said -- oh, it will be all right. Their parents can afford it and went on about their business. Well, it happened to us. We weren't wealthy, and it wasn't all right. We thought about going to some conservative justice program, but they only handle "religious" infringement cases. Ours wasn't in their category of concerns. Well, then, who is? When this hit and the Duke parents didn't hide in their homes in shame and let the media shine a light on this, I realized it might be a good time to let as many Americans as I could know that it isn't a hiccup. It's a crime perpetrated by individuals who have been placed in authority against otherwise defenseless people. I'm not for painting all law enforcement, lawyers or judges with the same brush (geez, I've made a living in the industry for over 35 years now), but if you see it happen in your home town, SPEAK UP. SPEAK OUT. SPEAK LOUD and do it MONTH after MONTH until somebody somewhere gets it. Keep the good guys, good guys. If you work on a police force and you know somebody is dirty or incompetent, SPEAK UP. SPEAK OUT. SPEAK LOUD and do it MONTH after MONTH until somebody gets it. Everybody knows when they're being taken for a chump. Don't hole up, fight back and fight with everything you've got. Yeah, you're going to be abused, threatened and generally thought to be a putz, but who cares? You've already been screwed, so what else can they do to you. If you think America just fell out of the blue into our laps by some divine power, think again. We fought like hellcats to set this place up, giving up our time, talent and treasure and LIVES and LIMBS to make a place where you could just live free and in peace with your neighbors. We stuck together and made a government BY the people, FOR the people and OF the people. It will take the same effort to keep it for our children. Don't go back to watching "Dancing with the Stars," or you will lose it.
My paragraph breaks aren't posting again for whatever reason. Sorry.
Is Joseph Kennedy a regular columnist for the NO, a guest columnist, or what? Is there any indication of any change on the part of the editorial board at the NO? Obviously, there has not been any such change at the H-S as far as editorials are concerned.
He is a prof at UNC's law school. That would be Nifong's alma mater by the way. This was in this morning's print edition as an op-ed. Interestingly enough, I went to post it here this morning and the N&O link said they didn't have the rights to post the article on their web site. I guess they got them since.
This says it all: "Nifong has also argued that the test results in question were disclosed when the defense specifically asked for them. Prosecutors do not get to play "Battleship" with their discovery obligations by requiring defense lawyers to score a direct hit with a discovery request. Prosecutors must affirmatively disclose what the law requires."
Kennedy is apparently a guest columnist. As far as the NandO, see this lead editorial from yesterday:
http://www.newsobserver.com/579/story/523257.html
And to answer your other question there was this from yesterday
http://www.newsobserver.com/579/story/523257.html
Gak - are we on the case or what?
Git 'r done...
The black newspapers even published the rape victim's name.
Nifong has enjoyed the benefit of the doubt from many members of the public over this case. But the more information that comes to light, the more questionable his conduct and judgment appear.
The worm is turning.
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