Posted on 01/14/2007 4:25:09 PM PST by Howlin
Comments here!
Friends of Duke University has started a Defense Fund for the falsely accused boys:
http://friendsofdukeuniversity.blogspot.com/2006/02/duke-lacrosse-defense-fund.html
Thankfully, these families have resources to protect them from such outrage.
And thanks for the reminder about Don Adams. He and his sister Terry remain in my prayers.
America lost 407,300 military personnel, and 11,200 civilians in WWII:
And my view is that Jezebelle nailed why Nifong SAID he did not discuss the case with Mangum. I just see no reason to believe him.
Thanks for pointing that out.
He sure did...I am anxiously waiting for his press conference to let us know what prestigious college she will choose.....LOL/s
You may have personal experience with people who use depression as an excuse but it is not accurate to flatly state that all such individuals do this. I have personal experience with quite a few diagnosed clinically depressed people who do everything in their power to shield others from their pain. They NEVER use their disease as a crutch.
Meanwhile, JLS, you have offered no proof whatsoever to support your claim, in this thread, that "Nifong probably personally and the DPD and his investigator at his direction most certainly asked her about all these problems with the evidence."
I do not understand why it is seems to be so important to you that your particular theory of *how* Nifong committed professional misconduct is the metaphysically "correct" one. Evidently you disagree with both Jezebelle's inference and my argument that despite our difference of opinion on that issue, the important thing is that we all agree Nifong is subject to discipline for prosecutorial misconduct. As I observed earlier, we will all know soon enough what tack Nifong will be forced to take (and how the disciplinary authorities will evaluate it) inasmuch as the fourth count of the disciplinary complaint will bring that particular issue into focus.
The fact is that at this point, neither of us knows for sure whether and when Nifong did or did not talk to Mangum concerning "all these problems with the evidence." Furthermore, I believe both of our opinions (and those of Jezebelle and Ohioan from Florida as well) are defensible, albeit on the basis of speculation. Can we agree that this is still fair enough to say?
" I wonder with all the DNA they found if she was drugged out and attacked elsewhere and her mind connected it to what happened at Duke "
That's entirely possible.
Nifong had to know all that we know and possibly more about Crystal , especially her psychiatric history , including hospitalizations.
He knew that Crystal had fresh sperm from multiple men in her vagina, rectum and all over her panties.
She was either horribly gang raped within 24 hours of arriving at the lacrosse house
or she was a mentally ill, but ,very busy prostitute with horrible hygiene.
Nifong said that he believed unconditionally that she had been raped .
Nifong knew from early on that the Duke players were not the rapists.
And yet, he did nothing to find the gang rapists.
I await the outrage from Wendy Murphy ,the black community and the legal community towards Nifong for his obvious dereliction of duty.
Rush has been talking about this all morning. He feels it was more interesting even than Bush's appearance.
My question is along these lines. Did Nifong know that "Precious" may have been taking a combination of drugs and alcohol over a period of time, and that while she was under the influence of those substances, she may have been engaged in sexual acts without her consent, because we are told, some females who are intoxicated can be believed as not being able to give consent. Further, there were any number of males who aided and abetted by either having sexual relations with her while she was under the influence, or knowing that she was under the influence of drugs/alcohol, delivered her to various locations, knowing that she would be sexually abused. Did Nifong deliberately fail to show concern for the victim, knowing that she was probably a tool of "human trafficking" and did nothing to stop it? What did he know, what he do, to protect a female who was obviously incapable of making sober decisions? What did Nifong do to intervene so that those who were trafficking her were punished? Did he refer her case, a case wherein possible numerous acts of rape or prostitution, to the Durham Police or other agencies for further investigation? Did he do nothing? If so, it is another issue to be discussed, IMO, regarding his ethical conduct.
I posted this on the other thread:
Do you ever wonder how much involvement, if any, her father had in all of this?
Travis knew of at least some of the AV's medical/psychiatric issues.
He had to be familiar with Jarriel Johnson, as JJ had been at the parent's home and was familiar with the AV's children.
He drove the AV to Brian Taylor's home that evening.
The AV called her father later that evening seeking directions to 610 N. Buchanan.
At 2:12 AM Shelton requests an officer to drive to Charles Street to check on the "young 'uns."
Several examples of a Supreme Court gone wild, extending the 5th Amendment privilege against self-incrimination to disbarment proceedings and the like. They held that you can't be penalized for pleading the 5th, that they can't even take your bar card. Outrageous stuff, none of which was the intent of the Constitution. The real Constitution contains no such prohibition of penalties. You can always plead the 5th, you just can't expect to remain a lawyer, doctor, or get federal funds, etc. if you do. I hope someday the real Constitution is restored.
Rush has a particular interest in political prosecutions.
"Several examples of a Supreme Court gone wild, extending the 5th Amendment privilege against self-incrimination to disbarment proceedings and the like. They held that you can't be penalized for pleading the 5th, that they can't even take your bar card. Outrageous stuff, none of which was the intent of the Constitution. The real Constitution contains no such prohibition of penalties. You can always plead the 5th, you just can't expect to remain a lawyer, doctor, or get federal funds, etc. if you do. I hope someday the real Constitution is restored."
Actually, Defiant, you may be relieved to know that under existing controlling Supreme Court precedent, you certainly *can* be penalized for taking the Fifth in civil proceedings. In my post, I specifically mentioned this as a factor distinguishing civil and criminal proceedings. The U.S. Supreme Court has explained why the "no adverse inference rule" used in criminal cases does not apply in the civil context as follows: "In ordinary civil cases, the party confronted with the invocation of the privilege by the opposing side has no capacity to avoid it, say, by offering immunity from prosecution. The rule allowing invocation of the privilege, though at the risk of suffering an adverse inference or even a default, accommodates the right not to be a witness against oneself while still permitting civil litigation to proceed. Another reason for treating civil and criminal cases differently is that 'the stakes are higher' in criminal cases, where liberty or even life may be at stake, and where the Government's 'sole interest is to convict.'" Mitchell v. United States, 526 U.S. 314, 318-19 28 (1999) (quoting Baxter v. Palmigiano, 425 U.S. 308, 318 (1976)). In some sense, the civil situation can be likened to federal criminal cases prior to Griffin v. California, 380 U.S. 609 (1965), when prosecutors could ask fact finders to draw inferences against defendants because of their failure to testify.
Here is some more case law regarding that general issue:
Deciding whether to take the Fifth is a matter of personal choice, to be exercised in view of the facts of the particular case. Freeman v. Kansas City Pub. Serv. Co., 30 S.W.2d 176, 182 (Mo. App. W.D. 1930). A party making this choice must weigh "the advantage of the privilege against self-incrimination against the advantage of putting forward his version of the facts[.]" Brown v. United States, 356 U.S. 148, 155 (1958). Accordingly, a "party who asserts the privilege against self-incrimination must bear the consequence of lack of evidence." United States v. Taylor, 975 F.2d 402, 404 (7th Cir. 1992). "This lost opportunity [to present evidence] is exactly what any individual involved in litigation loses when he elects not to testify. The Fifth Amendment gives no protection from that loss." Cox v. McNeal, 577 S.W.2d 881, 888 (Mo. App. E.D. 1979).
In the civil context, one of the potential results of such a "lack of evidence" has been described by the authors of one well-respected treatise as follows: "In some cases if a party claims the privilege and does not give his or her own evidence there will be nothing to support his or her view of the case and an adverse finding or even a directed verdict or grant of summary judgment will be proper." 8 CHARLES ALAN WRIGHT ET AL., FEDERAL PRACTICE AND PROCEDURE § 2018 at 288 (2d ed. 1994).
Another potential negative consequence was discussed by the United States Supreme Court in Baxter v. Palmigiano, 425 U.S. 308, 318 (1976), which held that reliance on the Fifth Amendment in civil cases may give rise to an adverse inference against the party claiming its benefits: "The prevailing rule [is] that the Fifth Amendment does not forbid adverse inferences against parties to civil actions when they refuse to testify in response to probative evidence against them: the Amendment 'does not preclude the inference where the privilege is claimed by a party to a civil cause.'" Id. (quoting 8 J. Wigmore, Evidence § 2272 at 439 (McNaughton rev. 1961)) (U.S. Supreme Court's emphasis). The rule that an adverse inference may be drawn from Fifth Amendment silence in civil proceedings has also been widely recognized by the federal circuit courts of appeal in the decades since Baxter was decided. See LaSalle Bank Lake View v. Seguban, 54 F.3d 387, 390 (7th Cir. 1995) (collecting cases). This rule (or the state constitutional equivalent) has also been expressly recognized by the courts of at least 18 states. See, e.g., 8 J. Wigmore, Evidence § 2272 n.14 at 439 (McNaughton rev. 1961 & 2003 Cum. Supp.).
An important reason for permitting the adverse inference approved in Baxter to be drawn in the civil context was elucidated in Sparks v. Sparks, 768 S.W.2d 563, 567 (Mo. App. E.D. en banc 1989): "Fundamental fairness requires that a plaintiff be afforded some remedy lest a defendant defeat the claim by concealment. The balance inherent in our adversary system is distorted if one party to a civil action is permitted by invocation of the privilege against self-incrimination to unilaterally control full presentation to the fact finder of all of the evidence pertaining to all of the issues. Thus, whether asserted by a plaintiff or a defendant, invocation of the privilege will, in most cases, require some form of judicial response of a remedial nature to eliminate any undue advantage which might flow from the ability to conceal pertinent evidence." Invocation of the Fifth Amendment thus poses substantial problems for the opposing party, who is deprived of a source of information that could conceivably be determinative in a quest to discover the truth. Moreover, because the privilege may be initially invoked by one party during discovery and then later waived at a time when the other party can no longer secure the benefits of discovery, the potential for unfair advantage or exploitation is apparent. Sec. & Exch. Comm'n v. Graystone Nash, Inc., 25 F.3d 187, 190 (3d Cir. 1994).
Once a party establishes a prima facie case, the effect of an adverse inference is to shift the burden of producing evidence to the individual invoking the Fifth Amendment. In re Salzman, 61 B.R. 878, 890 (Bankr. S.D.N.Y. 1986). If that individual remains silent in the face of the facts established by the other party, the tribunal may then infer that she is unable to deny the other party's allegations. Id.; Chase Manhattan Bank, N.A. v. Frenville, 67 B.R. 858, 862 (Bankr. D.N.J. 1986). Thus while a party is permitted to assert its privilege as a protective shield, it is not allowed to fashion it into a sword to strike out an adverse inference warranted by the circumstances. See United States v. Rylander, 460 U.S. 752, 758 (1983).
So should he take the Fifth in the disciplinary proceedings, Nifong would be risking an adverse inference that could be quite hazardous to his license to practice law in North Carolina.
True enough.
In a civil case, in which you are a party making an allegation affirmatively (as the plaintiff or a cross-claimant, or when making an affirmative defense) you cannot plead the 5th. It is unfair to go after someone and then when they try to get info from you, tell them that you won't talk.
However, that is different than a bar proceeding. A bar proceeding, or any other administrative hearing at which your right to something granted by the state is at stake, was held (I believe it was in the 70's, so all your authorities before then would be bad law, and an attorney would be fired for citing them) to be the type of proceeding protected by the 5th Amendment. The seminal case in that genre, in the modern era, came from a bar proceeding, and in that case, the Supreme Court extended the reach of the 5th amendment to include administrative actions where a person might lose a job or license by exerting their constitutional right under the 5th amendment.
This was contrary to existing law, and to the clear intent of the founders regarding the reach of the 5th Amendment. They would have had no trouble with yanking the bar card of a person who pleads the 5th in a criminal or administrative proceeding.
I have won motions to dismiss based on the opposing party pleading the 5th in depositions that I took, so I am familiar with this area of law.
I would also suggest that if a person's job is to acquire certain information, any refusal to disclose such information for Fifth Amendment reasons should be considered a refusal to do one's job.
Defiant, thanks for writing back. If you had read what I wrote a little more carefully, I think you'd see that we actually agree with each other.
I have no quarrel with your observation that when the *plaintiff,* cross-claimant, or proponent of an affirmative defense in a civil action refuses to respond to discovery sought by the opposing party, it is unfair and demands some sort of judicial response to prevent that unfairness. Indeed, well before the Supreme Court case to which you referred but did not identify was decided, the Ninth Circuit had held: "The scales of justice would hardly remain equal in these respects, if a party can assert a claim against another and then be able to block all discovery attempts against him by asserting a Fifth Amendment privilege to any interrogation whatsoever upon his claim. If any prejudice is to come from such a situation, it must, as a matter of basic fairness in the purposes and concepts on which the right of litigation rests, be to the party asserting the claim and not to the one who has been subjected to its assertion. It is the former who has made the election to create an imbalance in the pans of the scales." Lyons v. Johnson, 415 F.2d 540, 542 (9th Cir. 1969), cert. denied, 397 U.S. 1027 (1970).
Furthermore, although you overlooked it, I actually *argued as much* in my original post, when I wrote: "An important reason for permitting the adverse inference approved in Baxter to be drawn in the civil context was elucidated in Sparks v. Sparks, 768 S.W.2d 563, 567 (Mo. App. E.D. en banc 1989): 'Fundamental fairness requires that a plaintiff be afforded some remedy lest a defendant defeat the claim by concealment. The balance inherent in our adversary system is distorted if one party to a civil action is permitted by invocation of the privilege against self-incrimination to unilaterally control full presentation to the fact finder of all of the evidence pertaining to all of the issues. Thus, whether asserted by a plaintiff or a defendant, invocation of the privilege will, in most cases, require some form of judicial response of a remedial nature to eliminate any undue advantage which might flow from the ability to conceal pertinent evidence.' Invocation of the Fifth Amendment thus poses substantial problems for the opposing party, who is deprived of a source of information that could conceivably be determinative in a quest to discover the truth. Moreover, because the privilege may be initially invoked by one party during discovery and then later waived at a time when the other party can no longer secure the benefits of discovery, the potential for unfair advantage or exploitation is apparent. Sec. & Exch. Comm'n v. Graystone Nash, Inc., 25 F.3d 187, 190 (3d Cir. 1994)."
I also fully understand that dismissal may be warranted under such circumstances. In Missouri (where I have actively practiced law for well over a decade), it is well-settled that several judicially-sanctioned remedial responses are available to deal with these difficult issues. For example, "Missouri courts have long approved the dismissal of a claim by someone who was seeking affirmative relief but refused, on the basis of the Fifth Amendment, to reveal relevant information in discovery." Williams v. Gary Breedlove Constr. Co., 950 S.W.2d 557, 561 (Mo. App. S.D. 1997); see also In re Marriage of Fellers, 789 S.W.2d 153, 155 (Mo. App. E.D. 1990); Geldback Transport, Inc. v. Delay, 443 S.W.2d 120, 121 (Mo. 1969). In Hagenbuch v. Hagenbuch, 730 S.W.2d 269, 271 (Mo. App. E.D. 1987), the Eastern District observed that this doctrine was developed not to punish the Fifth Amendment claimant, but to promote fairness and to prevent the claimant from obtaining an undue advantage.
For these reasons, I am far from surprised that you have won motions to dismiss based on the opposing party pleading the 5th in depositions you took.
Of course, similar considerations apply when a civil *defendant* has invoked the privilege to preclude discovery. In such cases, a trial court may, in the exercise of its discretion, preclude the defendant from later changing his or her position and voluntarily testifying at trial to his benefit regarding the subject matter of the discovery originally sought. Dodson v. Dodson, 904 S.W.2d 3, 5 (Mo. App. W.D. 1995); State ex rel. Pulliam v. Swink, 514 S.W.2d 559, 561 (Mo. banc 1974); see also Gutierrez-Rodriguez v. Cartagena, 882 F.2d 553, 575-77 (1st Cir. 1989); Meyer v. Second Judicial Dist. Court, 95 Nev. 176, 591 P.2d 259, 262 (Nev. 1979). The same principle applies when a party offers an affidavit to compel a certain result on summary judgment before or after invoking the Fifth Amendment to avoid discovery. In re Edmond, 934 F.2d 1304, 1308 (4th Cir. 1991); United States v. Parcels of Land, 903 F.2d 36, 43 (1st Cir. 1990).
Finally, I am also well aware that several federal courts have gone so far as to hold that when a civil defendant invokes his or her Fifth Amendment privilege to avoid complying with a plaintiff's discovery requests, a trial court has discretion to enter a total preclusion order preventing the defendant from offering into evidence, either at the summary judgment stage or at trial, any information concerning the details of the particular request as to which the privilege was previously asserted by the defendant. See, e.g., Dunkin' Donuts, Inc. v. Taseski, 47 F. Supp. 2d 867, 872-73 & n.3 (E.D. Mich. 1999) (collecting cases); Traficant v. Commissioner, 884 F.2d 258, 265 (6th Cir. 1989); Sec. & Exch. Comm'n v. Cymaticolor Corp., 106 F.R.D. 545, 549-50 (S.D.N.Y. 1985); In re Anthracite Coal Antitrust Litigation, 82 F.R.D. 364, 369-70 (M.D. Pa. 1979). Other federal courts have refused requests for such orders, holding that total preclusion would place too great a burden on the legitimate exercise of a civil defendant's Fifth Amendment privilege. See, e.g., Sec. & Exch. Comm'n v. Graystone Nash, Inc., 25 F.3d 187, 191 (3d Cir. 1994); United States v. Talco Contractors, Inc., 153 F.R.D. 501, 509 (W.D.N.Y. 1994); Sec. & Exch. Comm'n v. Rehtorik, 135 F.R.D. 204, 206 (S.D. Fla. 1991). Commentators have also been sharply divided on the question. Compare Christopher V. Blum, Comment, Self-Incrimination, Preclusion, Practical Effect and Prejudice to Plaintiffs: The Faulty Vision of SEC v. Graystone Nash, Inc., 61 BROOKLYN L.REV. 275 (1995) with Frances S. Fendler, Waive the Fifth or Lose the Case: Total Preclusion Orders and the Civil Defendant's Dilemma, 39 SYRACUSE L.REV. 1161 (1988).
In short, I do not see how we disagree, except as to your rather bold and presumptuous claim that any pre-70's case bearing on Fifth Amendment issues is necessarily "bad law" which would subject me to being "fired for citing" it. (It's not as simplistic as that, and as a fellow lawyer, you know it.)
Furthermore, I think we're also in complete agreement that cases such as McCarthy v. Arndstein, 266 U.S. 34, 40 (1924) (a seminal case in which the Court held that the Fifth Amendment privilege against self-incrimination is properly asserted by parties in civil proceedings, despite the fact that the text of the amendment itself literally refers only to criminal proceedings) and Lefkowitz v. Turley, 414 U.S. 70, 77 (1973) (in which the Court held that a witness' privilege against self-incrimination "not only protects the individual against being involuntarily called as a witness against himself in a criminal prosecution but also privileges him not to answer official questions put to him in any other proceeding, civil or criminal, formal or informal, where the answers might incriminate him in future criminal proceedings") were both contrary "to the clear intent of the founders regarding the reach of the 5th Amendment" as clearly expressed by the words they used. Instead, I agree with Justice Brandeis' opinion in United States ex rel. Bilokumsky v. Tod, 263 U.S. 149, 153-54 (1923) (noting, in a civil deportation proceeding, that "Silence is often evidence of the most persuasive character.") I simply chose not to address that argument, as I felt existing Supreme Court precedent permitted the drawing of an adverse inference against Nifong if he took the Fifth in the forthcoming disciplinary proceedings.
So are we on the same page now? I certainly hope so!
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