Posted on 01/15/2007 4:04:02 AM PST by abb
Published: Jan 15, 2007 12:30 AM Modified: Jan 15, 2007 06:10 AM
Nifong conduct rebuked early State Bar has letter from lawyer warning prosecutor of ethical violations
Durham District Attorney Mike Nifong, on MSNBC, shows how he said a woman was choked while being raped at a Duke lacrosse party.
Joseph Neff, Staff Writer In the first weeks of the Duke lacrosse case, Durham District Attorney Mike Nifong continued to disparage lacrosse players in public after a defense attorney had put him on notice that he was violating ethical rules governing the conduct of lawyers. The N.C. State Bar has charged Nifong with making improper statements to the media. The Bar is likely to use the letter from defense attorney Joseph B. Cheshire V as evidence that Nifong had been warned he was crossing ethical boundaries early on.
"Your reported comments have greatly prejudiced any court proceedings that may arise," Cheshire wrote on March 30, three days after Nifong began making public statements about the case.
"I do not understand why you will reportedly speak to the media in such certain, condemning terms before all the evidence is in, but you will not have the courtesy to meet or even speak with a representative of someone you have publicly condemned, despite your knowledge of the presumption of innocence and your position as an officer of the court bound by the Rules of Professional Conduct related to pre-trial publicity."
The letter makes it more difficult for Nifong to argue that his remarks were off-the-cuff, said Thomas Metzloff, who teaches legal ethics at Duke Law School.
"That gets away from the spur of the moment defense, that 'I just went with it, I really didn't mean it, I was caught up in the emotion of the moment,' " Metzloff said.
The bar charged Nifong with violating a rule requiring prosecutors to "refrain from making extrajudicial comments that have a substantial likelihood of heightening public condemnation of the accused." The bar also charged Nifong with engaging in conduct involving dishonesty, fraud, deceit or misrepresentation and conduct prejudicial to the administration of justice.
Nifong brought charges of rape, sexual assault and kidnapping against three former lacrosse players: David Evans, 23; Collin Finnerty, 20; and Reade Seligmann, 20, saying they sexually assaulted a dancer from an escort agency during a March 13 team party. They have proclaimed their innocence and called the accusations lies. Nifong dropped the rape charges in December. On Friday, he asked the Attorney General's Office to take over the case.
Nifong goes public
Nifong made his first public statements on March 27, two weeks after the lacrosse party. "The circumstances of the rape indicated a deep racial motivation for some of the things that were done," Nifong told The Associated Press. "It makes a crime that is by its nature one of the most offensive and invasive even more so."
The woman is black; the accused players are white.
"We're talking about a situation where had somebody spoken up and said, 'Wait a minute, we can't do this,' this incident might not have taken place," Nifong said to The News & Observer.
"The contempt that was shown for the victim, based on her race, was totally abhorrent," Nifong told ABC TV. "My guess is that some of this stonewall of silence that we had seen may tend to crumble once charges start to come out."
The case instantly became a national and international story, with dozens of television trucks flocking around Duke and the Durham courthouse. Nifong estimated he gave 50 to 70 interviews in that first week. He called the players hooligans and said that "Duke students' daddies could buy them expensive lawyers."
The barrage of publicity was too much for Cheshire, who represents Evans.
Cheshire wrote in his letter that on March 29, he had his paralegal, Moira Bitzenhofer, call Nifong's office to set up a meeting so the defense lawyer could talk to the prosecutor either in person or on the phone. Nifong, through his assistant, Sheila Eason, declined to talk with Cheshire.
Cheshire wrote a strongly worded response and faxed it to Nifong at 3:42 p.m. on March 30.
"You and I have known each other for a long time, and I do not mind telling you I was amazed at that response," Cheshire wrote. "In 33 years, I have never seen such a request denied by a prosecutor, nor in such a manner. Your responsive comments, reported to Ms. Bitzenhofer by Ms. Eason verbatim, seemed to suggest I should call the Durham Police Department and have my client charged with a crime before you would have a conversation with me on a topic you have demonstrated no reluctance to discuss with myriad local and national news reporters over the last several days."
Cheshire went on to list some of Nifong's comments, as reported by The New York Times, WRAL and The News & Observer.
Cheshire said he didn't understand how Nifong could refuse to meet with a lawyer for one of the men the prosecutor had condemned in public. Nifong had essentially announced to the world that dozens of people were guilty of committing or aiding a racially motivated gang-rape, Cheshire wrote. And he wrongly proclaimed that the players wouldn't cooperate with police, when the truth was that three captains had voluntarily given interviews and their DNA to police, without consulting a lawyer.
"In addition to being patently false, your comments about the failure of anyone under suspicion to speak to law enforcement represent the type of negative comments on the exercise of Fifth Amendment rights that you would never be able to get away with in a courtroom."
Cheshire concluded that Nifong had left him and other defense lawyers no choice but to defend their presumed innocent clients in the media: "Sadly and unfortunately, that has created an atmosphere of trying these matters in the media, rather than a court of law, and that could have -- and should have -- been avoided."
Primary campaign
The day after receiving Cheshire's letter, Nifong appeared on MSNBC and demonstrated how the accuser had struggled to breathe while she was being choked during the alleged rape. He told The N&O he was certain a sexual assault had occurred at the house. And he continued to discuss the case as he campaigned to win the Democratic primary in the district attorney's race.
"The reason that I took this case is because this case says something about Durham that I'm not going to let be said," Nifong said at an election forum on April 12. "I'm not going to allow Durham's view in the minds of the world to be a bunch of lacrosse players at Duke raping a black girl from Durham."
Nifong has made few public comments after winning the primary May 2.
Even though he has recused himself from the case, he may face more charges from the Bar.
The Grievance Committee of the State Bar is meeting later this week and may add more charges against Nifong, Metzloff said.
The most likely charges would concern Nifong's withholding of DNA evidence favorable to the defense, Metzloff said. The director of a private laboratory testified that he and Nifong agreed not to report that tests had found DNA from unidentified men in and on the accuser.
"It's likely, but not a sure thing," Metzloff said. "It's likely they might want the judge to start things off."
In North Carolina, trial judges can punish or sanction lawyers for legal misconduct in a case.
Superior Court Judge W. Osmond Smith III, the trial judge, can find Nifong in contempt of court, but he can't disbar him.
"In some ways, the judge is better able to assess Nifong's alleged misstatements and the withheld evidence," Metzloff said.
Staff writer Joseph Neff can be reached at 829-4516 or jneff@newsobserver.com.
This case has revealed so many flaws in the North Carolina legal system that the legislature had better get busy correcting them ASAP.
Geez, I just read your home page. Durham sounds like a political Peyton Place, hehehe.
I do not want to fall into a trap of making precious a victim. She is what she is. If she indeed is bi-polar, she had a responsibility to continue medication. (Oh for the days when heavy duty psychiatric patients had no choice)
This does not absolve her, it does make nifong more of an evil villan than he already is.
That being said, for Nifong to use a person who has a psychiatric (speculated) diagnosis is, well I have no words.
He may try the "a bi-polar person can be raped" line, but if he was aware of her (speculated) diagnosis, it would have been in her best interest to investigate it further.
I don't know what the word is for attorneys, but in the medical profession it would fall under negligence or malpractice.
Was Nifong a willing accomplice in the rape of Duke or was it rape by proxy.
I would like to know who Melissa and Tammy Rose are. Do they have a license to do business in Durm. Is it on file somewhere?
I have tried to find a link to this article, but to no avail. Do you have one?
No, it is probably not on line. I pulled from an archived data base.
Mangum is who she is. She is as the DPD knew from the start a lying hooker gaming the system. Should she be punished for he false cry of rape. In theory yes, but in fact the police encounter people like her every day and ignor them without bringing charges or even sending an informtion to the DA to decide.
What caused this problem is Mike Nifong. He grabbed hold of this accusation that nobody believe and used it to win an election. Or as a parent put it last night [Mrs. Evans?], he needed a silver bullet or he was going to lose the election, his job, his pension and the cash he plowed into his campaign and he found a silver bullet and shot it at the three defendants. He cynically believed he could do whatever he wanted. He deserves to be severely punished for what he did.
The question is does Mangum deserve more punishment for what she did than she would have received had Nifong not done with it what he did? What Mangum did would have caused no one any problem. She was never going to name or ID anyone. She accused an amorphus team of rape. [I guess some academic might have and of course still will included in a bogus study of the violence of players of helmented sports?]
Now I guess this is like going on a hold up and having your side kick shoot and kill the cashier. You end up liable for a murder you neither committed nor possibly intended to happen. But a dead cashier is hardly a surprising outcome of an armed robbery. Is what Nifong did in charging three guys with no evidence to win an election a forseeable outcome of crying rape when you know you are a lying hooker and in general no one believes you? I go back and forth on this.
Mangum probably at times during this saw dollar signs and being a con artist was "gung ho." [No pun intended, well ok pun intended some.] I wonder if her family is telling the truth that at times she wanted out and Nifong would not let her. I could believe that of Nifong, but I could also believe that this is a ploy by her to hedge her bets on how this situation is resolve, ie it wasn't me I wanted to recant again.
So I always end up that certainly Mangum is culpable. But she is a lying hooker and Nifong is a DA. We should expect much much more from a DA than a lying hooker. Thus Nifong deserves by far the greater condemnation and sanctions than Mangum.
Maggief is correct. The Durham paper does not leave things up very long at all. That is why people on these thread always copy the whole thing to the thread to perserve a record.
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."
Ok, thanks for letting me know. That "~snip" at the end of the post made me think there might have been more to it than was posted.
The nut does not fall far from the tree...(okay, bad choice of words).
Travis is a liar.
Jakki is a liar.
Did Travis know Matt? Then why would he take baby girl to BT's house. And why would she call him to ask for directions?
How did Jakki, the drag queen become involved as the spokesperson? Is she family on travis' side? Have we ever seem baby girl's brother? (Just kidding) Meet my cousin, Jakki. Pay no attention to the thing between her legs.
I think about Jakki. She is the one who floated the 2mil story..
I want to rephrase my question.
Was Nifong a willing accomplice in the rape of Duke or is he is a tool of the Cabal?
The threat of disbarment may be clearly in play, but I don't believe for a second that disbarment will be the sanction imposed by the bar. I hope I'm wrong because certainly Nifong deserves to be stripped of his ticket.
But how can the bar impose disbarment against Nifong when only a few years ago it imposed only reprimands against the two special prosecutors from the AG's office who had withheld evidence in the Gell case? As a result of their misconduct, Gell was on death row for a decade. The three Duke defendants have gone through hell, but they will never be convicted.
It took the threat of disbarment to get Nifong off this case. Now he is off it and now he has experienced counsel who will help him craft a defense of plausible deniability and negotiate a resolution that will make this misconduct matter go away as quickly as possible.
And don't forget, Nifong still has very strong, long time friends in the NC power structure. Nifong has been a player in the structure. He is going to be protected.
Hmmm.....I thought it was "crazy uncle locked in the attic." :-)
Let's assume that the state bar suspends Nifong or whatever the terminology. Since the office is named "District Attorney then doesn't that mean that he could no longer be DA?
( I'm not a lawyer nor do I reside in NC. )
http://liestoppers.blogspot.com/2007/01/they-look-at-mother.html
[snip]
Nifong's magic bullet has ricocheted. We pledge that we will not be content until we've discovered everyone who helped supply his ammunition. Wherever that may lead.
Occam's razor says there is no cabal or conspiracy:
Durham' s machete thinks there is.
"The threat of disbarment may be clearly in play, but I don't believe for a second that disbarment will be the sanction imposed by the bar. I hope I'm wrong because certainly Nifong deserves to be stripped of his ticket."
I hope you're wrong, too, Mad-Margaret. My point was that these latest developments make disbarment more of a possibility than it was before.
"But how can the bar impose disbarment against Nifong when only a few years ago it imposed only reprimands against the two special prosecutors from the AG's office who had withheld evidence in the Gell case? As a result of their misconduct, Gell was on death row for a decade. The three Duke defendants have gone through hell, but they will never be convicted."
The answer to that question is that even though withholding exculpatory evidence is a major ethical breach, Nifong did *much more* (and is alleged to have done more) than that. And while Gell was entitled to a new trial due to the special prosecutors' Brady violations, such a remedy is unavailable to the Duke students, who have not been wrongly convicted (as of yet, anyway), but, as you acknowledge, have nevertheless "gone through hell."
"It took the threat of disbarment to get Nifong off this case. Now he is off it and now he has experienced counsel who will help him craft a defense of plausible deniability and negotiate a resolution that will make this misconduct matter go away as quickly as possible."
I cannot agree, because by their very nature, the latest revelations present a very serious obstacle to any successful claim, by Nifong, of plausible deniability. Indeed, this new evidence cuts directly against any such claim.
"And don't forget, Nifong still has very strong, long time friends in the NC power structure. Nifong has been a player in the structure. He is going to be protected."
This is what worries me the most. I suppose we can only hope that The Powers That Be decide to make Nifong an object lesson to all prosecutors on the theory that his many years as an active player in the North Carolina power structure make his ethical failures *more* reprehensible, and that he abused not only the rights of the accused, but also those of the accuser. After all, we have already seen leopards change their spots with regard to media coverage of the case, right?
I can't get past the fact of the First Ten Days. From the time of the alleged crime to the NandO's first front page piece. Lots of time for CGM, Cousin It, VP, etc, etc to plot out a humdinger of an extortion.
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