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.
Drive-by media mumbles a retraction after getting the lies out into the PC meme. No wonder so many Americans have no idea what is going on if they are getting their information from these clowns.
So Bell thinks they handled it well? How about when the DPD went door to door in the very beginning with petitions that stated AS FACT that a rape HAD occurred in that house?
How about when Nifong met with the Black Panthers and "shared" his evidence with them.
FGS, Duke let the BP ON CAMPUS!!!
Shameful.
"In some ways, the judge is better able to assess Nifong's alleged misstatements and the withheld evidence," Metzloff said.
Ah, isn't this the same judge who sat there when Nifong stood in that courtroom and said that that day was the very first time he had heard Meehan's statements about the DNA?
I'm pretty sure it is, because Nifong came outside the courtroom and was ambushed by the press and changed his story because Meehan admitted it on the stand!
Let's not count on that.
"What does it take to get a corrupt politician indicted?"
A Revolution
Brodhead is in fear of the PC crowd. He pandered to them deliberately.
And while the gang of 88 continues their stupidity, he still can't bring himself to rebuke them.
I believe that Mr. Nifong, the President of Duke University, The Duke University endowment, the Duke 88, the new Black Panther Party and Jesse Jackson could all be lighter in the pocket book when all is said and done.
I agree, she's not. She's had every opportunity to make a better life for herself. She chose another path. I'm just waiting for this thing to completely blow up & hear the Jackson/Sharpton crowd claim she's as much a victim of Nifong as the boys. Then some people are going to be "real ticked".
mark
I think Nifong is a victim of that "Monkeys Paw" thing. He wished to be DA and got it, sort of.
Reminds me of the guy in the Twilight Zone episode that wished to be "Ruler for life" of a country and, POOF, He was Hitler, in a bunker, with a bottle of poison.
Come to think of it, he is also a little like Chick after winning the big race at the end of Cars.
HEY! That's my line!!
You forgot to add:
Don't tell me you're inocent. That insults my intelligence and makes me very angry.
"I shudder at the thought of these liberal universities with their liberal students monitoring anything other than the cafeterias."
Are you sure you want them monitoring the cafeteria? Vegetarian or vegan fare exclusively would be the most likely result. While I like tofu occasionally in my chinese food, I wouldn't want a steady diet.
And...have you ever heard of Tofurkey?
http://en.wikipedia.org/wiki/Tofurkey
The Bill of Rights is supposed to guarantee the right to a speedy trial...Nifong was contemptuous of that early on (he had to drag it out past the general election) and the judge let him get away with the long delays. That someone new has replaced Nifong may reduce the danger of wrongful convictions, but it could mean additional delays before the case is dropped.
This case has harmed the legal system as a whole--how many people can have faith in the legal system now?
Clement: Thumbs up to manager
Councilman says Baker deserves vote of confidence for job well done
Herald-Sun, The (Durham, NC)
May 19, 2006
Author: RAY GRONBERG gronberg@heraldsun.com; 419-6648
Estimated printed pages: 3
With all that's been happening lately with the Duke lacrosse case and other events in Durham, elected officials need to give City Manager Patrick Baker a vote of confidence, Councilman Howard Clement said Thursday.
"I think it's time express our support for the manager that we have full confidence in what he's doing," Clement said during Thursday's council work session. "I think it's important to let Patrick know he's not out there by himself."
Clement's suggestion drew a round of jokes from his colleagues, and from Baker himself.
"I always think of a sports situation where a coach gets a vote of confidence and it usually means he's going to be fired," Baker said, to a round of laughter from the council. "It's not necessary. I get plenty of thanks doing this job."
Clement denied any backhanded intent, and the rest of the council eventually agreed that some sort of statement would help. Mayor Bill Bell said he'd bring a resolution to the council's next business meeting, which is scheduled for June 5.
The discussion followed what's been a busy and sometimes bruising couple of weeks for the manager that began when he spoke up to counter allegations that the Durham Police Department had doubts about the credibility of the accuser in the lacrosse case.
The allegations surfaced last week in a report commissioned by Duke President Richard Brodhead that sought to assess the university administration's handling of the case.
The report, from former university leaders William Bowen and Julius Chambers, said Duke officials underestimated the seriousness of the allegations against the lacrosse team because Durham police told them the accuser kept changing her story, and that the case was likely to produce only misdemeanor assault charges.
Baker immediately questioned that, and contacted Duke officials to find out who they'd talked to in the Durham Police Department. They told him the source of their information was a Duke police officer who'd overheard a Durham police sergeant's cell phone conversation at the hospital the night of the alleged rape.
The manager relayed that information to reporters, and said the Duke officer, Christopher Day, had taken out of context things the sergeant had said to his superiors as police were trying to figure out what they were dealing with. Baker insisted that Durham police had taken the accuser's allegations seriously and quickly launched a sexual-assault investigation.
But a defense lawyer for accused lacrosse player Reade Seligmann countered with a court motion that alleged Baker's actions were improper and placed pressure on Durham police to get their stories straight.
Supporters of the lacrosse players have agreed, and e-mailed Durham officials to register their unhappiness. One critic, a person who signed an e-mail only as D. Jones, said North Carolina's attorney general should investigate Baker's actions.
Elected officials fired back. "Mr. Baker is the city manager responsible for the Police Department. He is doing his job," Councilwoman Diane Catotti said in a response to Jones. "It is the defense attorneys' job to raise doubt, question tactics, etc., to benefit their clients."
After Clement spoke up Thursday, Catotti responded that council statements of support for Baker, individually or collectively, "are definitely important." She added, though, that the best way to make them is when it comes time to formally evaluate the manager's performance and decide on his annual pay raise.
(snip)
Workable link:
http://www.newsday.com/news/local/longisland/ny-liduke0115,0,7813905.story?coll=ny-top-headlines
Yes, Nifong did do a squirrely dance in front of this constituency pro-Nifong base: The bigotted MSM and the marxists who loved them both.
The judge who is running this case before the AG took over is the judge who heard Nifong say he didn't know anything about the DNA.
And unfortunately for us, the State of North Carolina doesn't have a right to speedy trial law, among other things; this has been a real eye opener for us who live here.
Yep, Durham mayor Bell has his point. In Durham black or white, they hate Duke students apparently. So they have the DPD target them.
Quick question: How does Duke expect their students to live by an honor code (I'm assuming they have one) when their administration and faculty do not? I would really like to know if this bothers anyone besides me.
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