Nifong conduct rebuked early (DukeLax DA was warned)

Raleigh News & Observer ^ | Jan 15, 2007 | Joe Neff

[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.

[Ohioan from Florida]

LOL! Ain't that the truth!

[JLS]

The fact that she had DNA from multiple men not at the party strongly indicates there was probably a conspiracy to commit fraud on part of this woman and her boyfriend(s).

SHE'S A HOOKER. Hooker have DNA of multiple men on them every day of the week. It is a condition of the job.

[Ohioan from Florida]

CM: Coleman's comment that I thought particularly damning: Nifong was "indifferent to justice".

LB: I thought that his comment the other day that "Nifong is mooning the justice system" was even better.

I liked them both. I thought Coleman's quote to 60 Minutes was an important one for the country at large to see (presuming that plenty of Americans still watch the show regularly; big presumption, I realize).

His quote to (?-one of the local reporters) was appropriate, witty, and memorable. I imagine that to be a quote he is long remembered for.

[JLS]

The new prosecutors just have to say two words and get out of it easy. The new prosecutors just have to say two words and get out of it easy.

"Charges dismissed."

They know that will not be enough. They may take that route, but if they do they will have a ton of criticism on them. They need to say:

1. case dismissed, no case can be proven if they have some doubt that maybe she was raped.

2. or case dismissed and it never should have been charged to exonerate all the accused including the unindicted players if they believe beyond a reasonable doubt no crime was committed against Mangum there that night.

What ever they do they will be criticized. If they just say case dismissed and make no comment, they will maximize the criticism they face.

[Bitter Bierce]

"Nifong is toast."

I think these latest revelations substantially reduce the possibility of a light sanction, such as a mere public reprimand. While it was possible before that the severity of the discipline Nifong received would depend more on the degree to which The Powers That Be decided to make him an object lesson than the actual evidence of prosecutorial misconduct, which is quite substantial, disbarment is clearly now in play.

[JLS]

And since that was a taped interview, I suspect if Mrs. Evans wanted that statement removed from the CBS broadcast she could have had it removed? CBS has seemed to be pretty accomadating to the good guys on this matter?

Sheehan view of this is colored by the potential that her employer will be a defendant.

[Locomotive Breath]

Well that's the big question isn't it? To what extent will the new prosecutors kow tow to the same political constituency as Nifong.

[Verginius Rufus]

The 6th amendment to the US Constitution reads:

"In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed..."

I guess "speedy" is a very elastic term. Or maybe the accused are not entitled to a speedy trial in this case, because no crime was committed. At least, no rape or sexual assault.

[Major_Risktaker]

But Nifong would and did meet with members of the New Black Panthers.

____________________________________

"We as black men cannot sit idly by and allow white men to
rape black women, regardless of what our sister (who by nature is a queen and a divine black woman) was doing," Shabazz is quoted as saying in a media release announcing the event.

Click for TV interview.

Malik Zulu Shabazz,
an attorney with the New Black Panthers

_____________________________

The fact that she had DNA from multiple men not at the Duke party strongly indicates there was probably a conspiracy to commit fraud on part of this woman and her boyfriend(s).

If I had to speculate, she she she had DNA from multiple men not at the party strongly indicates she was probably at another party and was paid for sex or raped there before she arrived at the Duke party.

____________________________________

[Verginius Rufus]

She praises the black cab driver who supported Seligmann's alibi...but fails to mention that Nifong went after the cab driver to retaliate (brought charges against him, but he was acquitted).

[Howlin]

The North Carolina Supreme Court's conclusion - that the right to a speedy trial does not afford affirmative protection against an unjustified postponement of trial for an accused discharged from custody - has been explicitly rejected by every other state court which has considered the question. 4 That conclusion has also been [386 U.S. 213, 220] implicitly rejected by the numerous courts which have held that a nolle prossed indictment may not be reinstated at a subsequent term. 5 [386 U.S. 213, 221]


http://209.85.165.104/search?q=cache:MepV1fu0JYsJ:caselaw.lp.findlaw.com/scripts/getcase.pl%3Fcourt%3Dus%26vol%3D386%26invol%3D213+does+North+Carolina+have+the+right+to+a+speedy+trial+law&hl=en&gl=us&ct=clnk&cd=2

[Clifford The Big Red Dog]

Who cares about criticism? Especially from CGM's side?

If Jesse and Al wanna criticize, let 'em...they're going to anyhow.

Officials worry too much about public opinion and criticism...that's the antithesis of leadership.

BTW, they need to dismiss with prejudice so jeopardy attaches and these charges can never be brought again

[xoxoxox]

Durham Mayor Bill Bell

---screwing Duke University

Durham Mayor Bill Bell

---screwing Duke University

Durham Mayor Bill Bell

---screwing Duke University

Durham Mayor Bill Bell

---screwing Duke University

Durham Mayor Bill Bell

---screwing Duke University

[Clifford The Big Red Dog]

Someone needs to tell "that constituency" to just sit down and shut up.

Maybe Howard Dean can...he's said it before, hehehe.

[JLS]

Right, she did not have time to mention Nifong went after witnesses in this case. She had to save space to criticize the parents of the wrongfully accused.

[Clifford The Big Red Dog]

After what that spineless moron of a president said and did and the foaming-at-the-mouth by the Gang Of 88, Duke needs to bend over and grab their ankles as they deserve it.

[Verginius Rufus]

As Samuel Johnson would have said,

"The woman's a whore, and there's an end on't."

[Locomotive Breath]

Yeah - when donkeys fly.

[xoxoxox]

The Gang Rape of Duke University

[JLS]

Who cares about criticism? Especially from CGM's side?

'rat AGs of NC care about criticism from "Mangum's side." That's who cares. But if the AG's people are smart enough to understand, they will understand what I said.

If they go forward, they will be greatly criticized. If they just drop they will be criticized by the local racists and nationally. If they drop and exonerate, only the local racists will criticize them.

I think their is little chance of them going forward. But the are right they must review the case and make their own call. The problem is that in their calculations the local racists are LOCAL. So they may try to drop with no exoneration. I think it is a miscalculation because the local racists will not think, oh well at least they did not exonerate the defendants, but be angry. And the people on the side of justice will be angry they did not exonerate the defendants. But this is just my conjecture about the situation, so we shall see.