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.
He resigned; he's off the payroll; BUT if he hadn't resigned, they really couldn't figure out how to STOP paying him............DUH on us, again, huh?
I was just trying to make the point that with no law license, he wasn't allowed to perform in an elected office.
But do you have to have a law degree to be the DA? (I honestly don't know if I want to know the answer to that question in reference to NC........LOL)
How do we know Nifong has actual friends in the NC power structure, and who are they?
Judge who lost license resigns
Mandy Locke, Staff Writer
An embattled District Court judge decided to resign Wednesday rather than continue to be paid for a job he couldn't do.
James Ethridge has given up his job, said his attorney, Alan Schneider. The move came two days after state officials admitted they didn't know how to remove him from the bench even though the N.C. State Bar has stripped him of his law license.
Ethridge, who was elected judge in Johnston, Harnett and Lee counties in 2004, will officially step down Tuesday, he wrote in a letter to be delivered to the governor this week.
"James made this decision because it was the right thing to do in light of the controversy," Schneider said Wednesday night. "It was not because of the pressure."
Judges can't hold court without a law license. Ethridge lost his license in October after the State Bar decided he had been dishonest and deceitful as a lawyer in 2001 when he took the home and life savings of a senile woman, then 69 years old.
http://www.newsobserver.com/114/story/531187.html
(no links)
Kirk gives Payne the business
The News & Observer
February 12, 2002
Author: Amy Gardner; Staff Writer
Estimated printed pages: 2
The head of the state's leading business lobby takes a shot at one of Gov. Mike Easley's recent political appointments in the latest issue of the group's monthly magazine.
Phil Kirk, president of N.C. Citizens for Business and Industry, called Easley's appointment in December of Harry Payne to lead the Employment Security Commission "a dramatic insult to the state's business community."
In the past, Kirk has disagreed with Payne over such workplace issues as ergonomics regulations. He called the former labor commissioner "a yearlong unemployed liberal Democratic activist" with a "clearly anti-business record and bias."
As chairman of the state Board of Education, Kirk himself is a gubernatorial appointee. And he has been criticized recently for wearing two hats, as some members of the business group have accused him of of not properly representing their interests while also leading the state on education policy.
Payne, for one, thinks that conflict may have had something to do with Kirk's message.
"I just assumed that Phil was putting on a display for his members," said Payne, who is married to N&O columnist Ruth Sheehan.
But Payne clearly thought Kirk went too far.
"When the arguments slide toward ad hominem," Payne said, "they invariably take on an edge that I think is undignified for someone who describes himself as the voice of business and industry, and perhaps not the best of role models for a public school system."
Kirk insisted there was nothing personal about the piece, nor did it have anything to do with the fire he came under for his dual public roles.
"That's preposterous," Kirk said, before the business group's executive committee gave him a vote of confidence last week. "The column was written six weeks ago, before there was any hint of dissatisfaction. Anybody who subscribes to that theory doesn't understand magazine deadlines."
(snip)
KEEPING UP WITH NUMBERS -
Payne on the job
Employment security chief tracks funds, readies nursery
Morning Star (Wilmington, NC)
January 1, 2003
Author: Mark Schreiner, Raleigh Bureau Chief
Estimated printed pages: 2
RALEIGH Harry Payne has two holiday wishes: For a healthy child born by Jan. 16 and for a $150 million federal loan to the state.
The Wilmington native, now chairman of the N.C. Employment Security Commission, is making preparations for a third child.
"I swear I'll go crazy if I have to carry another load of Sheetrock into the house" for the nursery, Mr. Payne said during an interview last month. "But it's got to be done."
Other New Year tasks awaiting him are persuading Congress to extend unemployment benefits again and to convince the administration to loan the state unemployment insurance fund money if it runs out before first quarter premiums come in during April.
Both wishes have their public side. Readers of Raleigh's News & Observer have gotten frequent insights and updates from Mr. Payne's wife, columnist Ruth Sheehan.
Unemployment and other indicators of the troubled economic times have made headlines all year long.
A little more than a year ago, Mr. Payne had departed the public view, declining to run for re-election after finishing two four-year terms as North Carolina's elected commissioner of labor.
Before that, he had served 12 years in the state House, representing New Hanover County.
In 2000, he decided to work from his Raleigh home, get in on the Internet revolution and spend time with his children.
"It was truly a case of 'Harry timing,' picking the worst time to get into the dot-com boom," he said. "But we still have a solid idea, something worth looking at when people are ready to invest in the Internet again."
The idea is biglobby.com, a subscription Web portal which allows users to track North Carolina legislation through the General Assembly, notifies them when changes are made and helps them write target messages to lawmakers on topics that interest them.
The dream was to connect the labyrinth of lawmaking to citizens through the Internet, he said.
Also, working at home was not as easy as he thought.
"I have a jealous, loud dog that wanted my attention, even when I was on the phone," he said. "I wasn't cut out to work from home."
In 2001, he asked Gov. Easley for a spot in his administration and the ESC chairmanship became available.
(snip)
He didn't need to. He only needed to play the race card and boost his numbers among black voters to win the Democrat primary.
What happens to his (Nifong) previous cases now? Review, appeal, anything?
I am not disagreeing with you; the evidence of Nifong's misconduct is strong enough to warrant disbarment. And the latest revelations go to the heart of any plausible deniability defense. Any expected defense from Nifong -- inadvertence, oversight, lack of knowledge, whatever -- doesn't pass the smell test for either you or me. But the bar is going to hear what the bar wants to hear. And notwithstanding the evidence, it will not disbar him.
The media leopards still have spots. This case didn't turn out the way they'd hoped. The bloggers forced them to alter their coverage to a degree. But the media leopards are satisfied to have Nifong off the case. The charges will be dismissed. The justice system worked. Let the healing begin.
Thx.
Right call, Jezebelle. I spent a moment looking into his future, due your post.
There is time unaccounted for Pre- and Post- Duke house hoax. Of course, if there was a way to date stamp semen, that would provide a much better idea of both unnaccounted time spans.
Jezebelle, I know you've read all of the articles that have been posted about the two special prosecutors. You've commented on them.
Look at that one article (and I can't find the link) from the early 90s. The players are the same. Easley, Stephens, Mary Winstead, Nifong. There was another article (or maybe it was a post) that had Nifong contacting Coman as he was making his request to be taken off the case. The AG Cooper wouldn't even reveal the grounds for Nifong's request.
Nifong is most definitely part of the structure. He knows all the dirt. You don't think Nifong is going to be protected?
Howlin, have you seen this?
http://www.freerepublic.com/focus/f-news/1767923/posts
No, I missed that one. Thanks.
"But the bar is going to hear what the bar wants to hear. And notwithstanding the evidence, it will not disbar him."
Wow; you really *are* cynical, in the full sense of the word, Mad-Margaret. :^) There is (and can be) no response to that bleak, grim view of the situation, as even hope itself has no place in such a world. I, however, have not given up hope, particularly since in North Carolina, the recommendation of the bar's disciplinary committee (the body in which Nifong has the most pull) as to punishment is only advisory and the Supreme Court exercises its own judgment.
"The media leopards still have spots. This case didn't turn out the way they'd hoped. The bloggers forced them to alter their coverage to a degree. But the media leopards are satisfied to have Nifong off the case. The charges will be dismissed. The justice system worked. Let the healing begin."
But couldn't the bloggers force the disciplinary committee to alter its view of the evidence, at least to a degree, as they did with the media? Isn't that even a possibility in your mind? And you don't really think dismissal of the charges alone would prove that the justice system "worked," do you? Shouldn't full and complete justice also include vindication of the ethical principles underlying the American system as a whole, in which "the prosecutor's role transcends that of an adversary, as he 'is the representative not of an ordinary party to a controversy, but of a sovereignty . . . whose interest . . . in a criminal prosecution is not that it shall win a case, but that justice shall be done'"? United States v. Bagley, 473 U.S. 667, 675 n.6 (1985) (quoting Berger v. United States, 295 U.S. 78, 88 (1935). And if not, can the healing ever truly begin?
Yes. A total cynic! As for hope, I hope you're right and I'm wrong.
Of course I don't think that dismissal of the charges would be enough. Not by a long shot. I was being sarcastic. And BTW, I detest the word "healing" -- especially when it comes from people who caused or continued the harm in the first place.
I don't think the bloggers will have much influence over the disciplinary committee because the committee doesn't see the bloggers as a threat. The media do. And with good reason, the bloggers have done a better job covering this case than the MSM have. The media had to alter their coverage. The professional journalists were being shown up by engineers and history professors.
Substantial but uncorroborated rumor from friends in Durm is that Brodhead may resign soon.
Posted: Jan 15 2007, 06:17 PM
That would both be a surprise and not a surprise. I would guess that he does not see the 2007-08 academic year as Duke president. But the day he resigns will be a surprise.
Nifong's nom de guerre when he joins the French Foreign Legion (to do his family the favor of allowing them to forget that he ever existed): "Sac d'engraise."
Oh my goodness -- I should have known better. (And to think that, against my natural instincts, I made a conscious effort to be gentle, too.) Sorry about that, Mad-Margaret! You never know, though: maybe one of the members of the disciplinary committee will be a closet FReeper and/or former journalist.
Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.