Nifong is now, in effect, exercising his Fifth Amendment rights.
He had to step down from the case to stop himself from telling more lies generally and, worse, further perjuring himself in open court and in signed affidavits and declarations.
I have a feeling that he was issued a subpoena by at least one of the defense attorneys. The idea that his office protects him from the same is invalid.
"Nifong is now, in effect, exercising his Fifth Amendment rights."
Although it seems to be an unlikely possibility, Nifong might ultimately decide to take the Fifth in the disciplinary proceedings (not only "in effect," but in relaity), because although by its literal terms applicable only in criminal proceedings, the Fifth Amendment privilege against self-incrimination has long been held to be properly asserted by parties in civil proceedings. McCarthy v. Arndstein, 266 U.S. 34, 40, 45 S. Ct. 16, 17, 69 L. Ed. 158 (1924). (The privilege against self-incrimination guaranteed by the Fifth Amendment was first applied to the States under the due process clause of the Fourteenth Amendment in Malloy v. Hogan, 378 U.S. 1, 12 L. Ed. 2d 653, 84 S. Ct. 1489 (1964)).
"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.'" State ex rel. Munn v. McKelvey, 733 S.W.2d 765, 768 (Mo. banc 1987) (quoting Lefkowitz v. Turley, 414 U.S. 70, 77, 94 S. Ct. 316, 322, 38 L. Ed. 2d 274 (1973)). The constitutional privilege against self-incrimination may, therefore, be asserted not only at trial, but during the discovery stage as well. State ex rel. Lieberman v. Goldman, 781 S.W.2d 802, 805 (Mo. App. E.D. 1989); Sec. & Exch. Comm'n v. Graystone Nash, Inc., 25 F.3d 187, 190 (3d Cir. 1994).
"The normal rule in a criminal case is that no negative inference from the defendant's failure to testify is permitted." Mitchell v. United States, 526 U.S. 314, 327-28, 119 S. Ct. 1307, 1314-15, 143 L. Ed. 2d 424 (1999). However, "the courts have never held that a Fifth Amendment claimant in a civil proceeding must be shielded from all possible negative consequences that may attend his invocation of the privilege. In fact, civil claimants have been denied certain benefits and exposed to negative consequences as a result of having invoked the privilege." In re Moses, 792 F. Supp. 529, 536 (E.D. Mich. 1992) (emphasis added); see also Cruce v. Auto-Owners Mut. Ins. Co., 851 S.W.2d 10, 14 (Mo. App. W.D. 1993).