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.
The restrooms would be more appropriate!
"There are six things which the Lord hates, Yes seven which are an abomination to Him: Haughty eyes, a lying tongue, and hands that shed innocent blood, a heart that devises wicked plans, feet that run rapidly to evil, a false witness who utters lies and one who spreads strife among brothers."
http://www.wral.com/news/local/story/1137618/
Posted: 33 minutes ago
Updated: 27 minutes ago
Raleigh — The former prosecutor in the Duke lacrosse case could face another complaint from the North Carolina Bar.
Last month, the bar filed an ethics complaint against Durham County District Attorney Mike Nifong for his numerous pretrial comments regarding the Duke Lacrosse case. The complaint says the district attorney's conduct was dishonest and deceitful.
The bar committee that handles complaints meets again Thursday. The bar won't confirm or deny whether it is looking into another complaint, but some observers say there is reason.
They say Nifong broke other professional conduct rules by failing to turn over exculpatory evidence -- which tends to negate guilt -- to defense attorneys in a timely manner.
The evidence in question is test results in which no DNA from any lacrosse player was found on the accuser.
After a December hearing, Nifong insisted he did nothing wrong.
"There was no attempt to hide anything," he said, adding that defense attorneys only had to ask for the evidence.
Nifong's pretrial hearing regarding last month's ethics complaint is next week. A trial is set for May
Just had a satisfying thought. Nifong had to lend $30,000 to his campaign.
How many billable hours could that have paid for?
heh-heh-heh
The buffoon apparently doesn't even know how utterly wrong he is (not that it would matter). As the Second Circuit put it in United States v. Payne, 63 F.3d 1200, 1208 (2d Cir. 1995): "[T]he government has an affirmative duty to disclose favorable evidence known to it, even if no specific disclosure request is made by the defense." Or, as the Missouri Supreme Court said in Middleton v. State, 103 S.W.3d 726, 733 (Mo. banc 2003): "Prosecutors must disclose, even without a request, exculpatory evidence, including evidence that may be used to impeach a government witness." "It is not enough for the prosecution to avoid active suppression of favorable evidence; Brady and its progeny require disclosure." Leka v. Portuondo, 257 F.3d 89, 99 (2d Cir. 2001). And, as the United States Supreme Court made clear in the very recent case of Banks v. Dretke, 540 U.S. 668, 696 (2004), any rule "declaring 'prosecutor may hide, defendant must seek,' is not tenable in a system constitutionally bound to accord defendants due process."
Bring on the additional charges!
Nifong Could Face 2nd Bar Complaint
Raleigh — The former prosecutor in the Duke lacrosse case could face another complaint from the North Carolina Bar.
Last month, the bar filed an ethics complaint against Durham County District Attorney Mike Nifong for his numerous pretrial comments regarding the Duke Lacrosse case. The complaint says the district attorney's conduct was dishonest and deceitful.
The bar committee that handles complaints meets again Thursday. The bar won't confirm or deny whether it is looking into another complaint, but some observers say there is reason.
They say Nifong broke other professional conduct rules by failing to turn over exculpatory evidence -- which tends to negate guilt -- to defense attorneys in a timely manner.
The evidence in question is test results in which no DNA from any lacrosse player was found on the accuser.
After a December hearing, Nifong insisted he did nothing wrong.
"There was no attempt to hide anything," he said, adding that defense attorneys only had to ask for the evidence.
Nifong's pretrial hearing regarding last month's ethics complaint is next week. A trial is set for May.
Someone is certainly leaking that more charges are coming this week against Nifong. I certainly hope they are right.
PS: I actually hope that leak is right and the ethic charges this week don't have anything to do with the 15th hearing yet. There are all sort of bad acts he could be charged with from the hearings over the summer.
Me too. The more well-founded charges brought against Nifong, the better.
Interesting statistic from April 13, 2006 FR thread.
" When it comes to women talking about the scandal, 80 percent of more
than 90,000 have already come to their own verdict -- guilty.
As for the men, 80 percent of them believe an extortion scheme is at play."
http://www.freerepublic.com/focus/f-chat/1614326/posts?q=1&&page=1
post # 7.
There is a wealth of information buried back in there.
http://durhamwonderland.blogspot.com/2007/01/special-prosecutor-route.html
Nifong’s recent machinations have simplified Coman’s job. Because Nifong dismissed the rape charges but retained those dealing with sexual assault and kidnapping, the theory of the crime now revolves around the accuser’s December 21 statement.
1. Were the rape charges against the three defendants dismissed with prejudice?
2. AG Cooper said at his news conference that the investigation has a fresh beginning. Doesn't that mean that all the witnesses, including the accuser, will be interviewed again? IOW, why will her December 21st statement control the theory of the crime?
3. If, for the purpose of argument, her December 21st statement controls the theory of the crime, then how are the indictments valid against the three defendants? Especially Reade?
"...These families have so many potential lawsuits..."
Don't forget the NBPP.
Sorry I had a fight in the middle of your Black Panther party.
Jen-ny, he should NOT be hit-ting you!
"...Duke let the BP ON CAMPUS..."
As detestable as Duke's actions have been throughout, to their credit, I think they actually barred the fools from actually demonstrating on campus.
As I recall, they marched outside the perimeter of the campus, doing their demonstrations outside the house and a campus entrance (which one I'm not sure).
http://liestoppers.blogspot.com/2007/01/nifongs-ripples.html
Feds Won't Investigate Nifong
--WRAL
Posted: Today at 2:26 p.m.
Washington — The U.S. Department of Justice has rejected a congressman's request to investigate Durham County District Attorney Mike Nifong's actions in the Duke University lacrosse case.
But 3rd District Congressman Walter Jones will continue trying to get officials to examine Nifong's conduct, his spokeswoman said.
Jones, a Republican, last month sent two letters to U.S. Attorney General Alberto Gonzalez, asking for an investigation into what he believed was prosecutorial misconduct by Nifong, a Democrat.
Jones said Nifong made prejudicial statements to the media and told Durham police to violate identification procedures. He also cited the fact that more than nine months had passed before Nifong spoke to the accuser in the case.
A student at North Carolina Central University said three Duke lacrosse players sexually assaulted her at an off-campus team party last March 13. Reade Seligmann, 20, of Essex Fells, N.J., Collin Finnerty, 20, of Garden City, N.Y., and David Evans, 23, of Bethesda, Md., have been charged with kidnapping and sexual offense in the case.
Rape charges against the three players were dropped last month.
Acting Assistant Attorney General Richard Hertling wrote to Jones last Thursday, saying the Justice Department wouldn't look into the matter.
Hertling said the dismissal of the rape charge addressed some of Jones' concerns and said the North Carolina State Bar was examining Nifong's conduct.
The State Bar filed a complaint against Nifong last month over his public comments about the Duke case. Nifong might face a second complaint regarding his agreement with the director of a DNA lab to withhold some findings of tests conducted in the case.
"Issues related to your concerns may well be raised in the local criminal case. Accordingly, based upon the information available at this time, it would be premature to initiate a federal investigation into this ongoing state criminal prosecution," Hertling wrote.
Kathleen Joyce, Jones' press secretary, said Tuesday the congressman continues to press for a federal investigation. He has spoken with Hertling in recent days and plans to meet next week with director of the Justice Department's Civil Rights Division, she said.
Nifong asked Friday that the state appoint a special prosecutor to take over the Duke case, and Joyce said since he is no longer involved with the case, there should be no problem with federal government reviewing his actions.
"It is Congressman Jones' position that, in light of Mr. Nifong's recusal from the case, there is no reason the Department of Justice should not initiate an investigation into whether Mr. Nifong's actions constitute prosecutorial misconduct and (have) denied the three Duke students their civil rights," Joyce said.
http://wral.com/news/local/story/1138226/
"If Nifong is disbarred, he could not serve as district attorney. In fact, he could not practice law in any capacity anywhere in North Carolina."
Your answer is analogous to the proverbial elphant gun/mosquito metaphor. What about actions (suspension, etc.) short of disbarment?
"What about actions (suspension, etc.) short of disbarment?"
Like those in most every other state, the Rules and Regulations of the North Carolina State Bar ("N.C. Bar Rules") authorize various remedial actions to be taken in lawyer discipline cases, depending on the severity of the ethical violation committed by the defendant-attorney. According to N.C. Bar Rules Subchap. 1B, Section B.0123(a):
"Upon the final determination of a disciplinary proceeding wherein discipline is imposed, one of the following actions will be taken--
(1) Admonition.
An admonition will be prepared by the chairperson of the Grievance Committee or the chairperson of the hearing committee depending upon the agency ordering the admonition. The admonition will be served upon the defendant. The admonition will not be recorded in the judgment docket of the North Carolina State Bar. Where the admonition is imposed by the Grievance Committee, the complainant will be notified that the defendant has been admonished, but will not be entitled to a copy of the admonition. An order of admonition imposed by the commission will be a public document.
(2) Reprimand.
The chairperson of the Grievance Committee or chairperson of the hearing committee depending upon the body ordering the discipline, will file an order of reprimand with the secretary, who will record the order on the judgment docket of the North Carolina State Bar and will forward a copy to the complainant.
(3) Censure, suspension, or disbarment.
The chairperson of the hearing committee will file the order of censure, order of suspension or disbarment with the secretary, who will record the order on the judgment docket of the North Carolina State Bar and will forward a copy to the complainant. The secretary will also cause a certified copy of the order to be entered upon the judgment docket of the superior court of the county of the defendant's last known address and of any county where the defendant maintains an office. A copy of the order of censure, order of suspension or disbarment will also be sent to the clerk of the superior court in any county where the defendant maintains an office, to the North Carolina Court of Appeals, to the North Carolina Supreme Court, to the United States District Courts in North Carolina, to the Fourth Circuit Court of Appeals, and to the United States Supreme Court. Orders of Censures imposed by the Grievance Committee will be filed by the committee chairperson with the secretary. Notice of the censure will be given to the complainant and to the courts in the same manner as orders of censures imposed by the commission."
According to N.C. Bar Rules Subchap. 1B, Section B.0124, only the two most severe of these sanctions, suspension or disbarment, would prevent Nifong from continuing to serve as DA.
Thank you. Your are obviously a copy/paste whiz. I eventually got to what I was looking for -- the answer to the question -- in the final paragraph.
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