Duke lacrosse charges to be dropped (1 Viewer)

[NCCommish]

Interesting that the arguement seems to be that Nifong should suffer the same fate he inflicted on the young men. That though the likelihood of success is minimal, and against the letter of the law and the apparent weight of the evidence, that those matters should be ignored and the matter pursued. Further interesting, to me at least, that any attorney handling the matter will essentially be doing so for the same reasons as did Nifong, because it will initially be percieved as being good for one's career.Did Nifong have probable cause to file with a victim statement, some initially corroborating testimony, and some physical evidence-yes. Should he have, as a cautious and prudent prosecutor done a more thourough initial investigation before filing-ideally. Was he then reckless, I would say so. Was he malicious thereby abrogating his protections under governmental immunity, very unlikely. Is there some record that as the evidence developed futher that he amended charges, yes. Will that help him in avoiding a civil suit that already looks weak, yes.Ultimately, as a legal matter he is sitting in a pretty good position. That said if the judge allows the matter past summary judgment, and some just might, you never know what a jury will do.

It sure looked malicous and politcally motivated from here. You get this in front of a jury and I think he goes down along with several others.

 

[Fla\/\/ed]

From 1-15-07 WRAL.com

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 pretrial comments regarding the case in which three lacrosse players face charges of kidnapping and sexual assault on an exotic dancer hired for an off-campus team party. The complaint says the district attorney's conduct was dishonest and deceitful.

The 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 works to a defendant's benefit rather than a prosecutor's, 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 bar trial is set for May.

 

[Fla\/\/ed]

From 3-19-07 WRAL.com

A North Carolina State Bar response to Durham County District Attorney Mike Nifong's request for dismissal of some of the charges against him suggests the agency believes that Nifong has attempted to skirt the system in his handling of the Duke lacrosse case.

In a legal brief filed Monday, the bar suggests Nifong wants the organization to interpret the law according to his view of it. It also said it doesn't buy Nifong's explanation for withholding DNA evidence and claimed he's twisting words to make his argument fit.

The charges and the ensuing debate stems from indictments won against three Duke University lacrosse players last year following a party at which a woman claimed she was raped.

In papers filed last week, attorneys for Nifong added to their argument that the players' attorneys received a report and its underlying data on DNA testing well before any trial. The report was conducted as part of the assault investigation.

"That Nifong disclosed both the report and the underlying data later than the Duke defendants would have preferred does not turn Nifong's disclosure, or failure to make what the defendants would consider timely disclosure, into a constitutional violation," they wrote.

However, the bar said that the nearly 2,000 pages of test results and examinations given to the defense wasn’t a report and was no more than raw data that defense attorneys were left to decipher with the help of hired experts. The brief said that to remain within ethical boundaries, Nifong should have included a summary of the DNA analysis.

The state bar is the agency that regulates and disciplines attorneys in the state.

Nifong turned the case over to state prosecutors in January after the bar charged him with ethics violations. He had already dropped rape charges after the 28-year-old accuser changed a key detail of her account of the March 13, 2006, party where she was hired to perform as a stripper.

The three players still face charges of sexual offense and kidnapping. They have strongly maintained their innocence.

The latest filing from Nifong's attorneys did not address bar allegations that in numerous interviews he granted in the early days of the investigation, he made comments that had a "a substantial likelihood of heightening public condemnation of the accused."

His attorneys have previously said those interviews were aimed at reassuring the community and seeking help from the public in obtaining information.

University of North Carolina law professor Joe Kennedy described the bar's tone in the most-recent documents as somewhat incredulous. He pointed to the bar's following point: "Nifong is arguing that he can make false statements to a court…then use his misrepresentations to claim he committed no violation."

A date has not been set yet to argue these motions. However, the hearing is likely to happen in the near future. Nifong's hearing before the bar has been tentatively set for June.

 

[MelvinTScupper]

See, that's just plain wrong. The medical examination concluded that there was evidence supporting a claim of physical assault.Whether it was the lacrosse team or some random guy she slept with earlier that night, THAT is where there is no proof.

Do you believe a Duke Lacrosse player raped her, based upon the DNA evidence, the testimony of the other stripper, and all the other evidence that has come to light? yes or no?

What aren't you understanding? You're asking my opinion now? You said no evidence ever existed of a rape.She claimed she was raped by those players: FACT. A medical examination showed evidence of said rape: FACT.

 

[simey]

Interesting that the arguement seems to be that Nifong should suffer the same fate he inflicted on the young men. That though the likelihood of success is minimal, and against the letter of the law and the apparent weight of the evidence, that those matters should be ignored and the matter pursued. Further interesting, to me at least, that any attorney handling the matter will essentially be doing so for the same reasons as did Nifong, because it will initially be percieved as being good for one's career.Did Nifong have probable cause to file with a victim statement, some initially corroborating testimony, and some physical evidence-yes. Should he have, as a cautious and prudent prosecutor done a more thourough initial investigation before filing-ideally. Was he then reckless, I would say so. Was he malicious thereby abrogating his protections under governmental immunity, very unlikely. Is there some record that as the evidence developed futher that he amended charges, yes. Will that help him in avoiding a civil suit that already looks weak, yes.Ultimately, as a legal matter he is sitting in a pretty good position. That said if the judge allows the matter past summary judgment, and some just might, you never know what a jury will do.

Nilfong purposely withheld exculpatory evidence from the defense and made inflammatory and as it turns out completely incorrect statements to the media. The first is illegal and the second is unethical and not allowed by the BAR. That it why the BAR has charges against him. I don't think he's in a good legal position at all. If the BAR levies any type of penalty against him whatsoever, even just a public reprimand, I think it will pretty much guarantee a victory in a civil case from the accused players.

The sanction for the withholding of exculpatory evidence is the exclusion of the same. Yes, he is answerable to the Bar. I believe he is a disgrace and should be disbarred. The question in a civil suit, at least legally will not be is he an unworthy jackass and a political opportunist. The question is does his immunity stand.

I don't know if his immunity will stand, but I think there is a good chance he will be disbarred. He violated multiple provisions of the North Carolina Rules of Professional Conduct. One big one was ordering the Durham Police not to follow their own procedures in the line-up, which ultimately resulted in the three lacrosse players being charged. The procedures required five filler photos per every suspect. Nifong told police to confine the line-up to suspects, being only members of the lacrosse team. The Bar also accused Nifong of making an intentional agreement with Dr. Meehan to withhold exculpatory evidence, and accused Nifong of not only multiple ethics violations, but also of repeatedly lying to the court, breaking three state laws, and violating the Constitution. The attorney general’s special prosecutions division is handling the case against him. He is in deep doodoo.

 

[Chase Stuart]

See, that's just plain wrong. The medical examination concluded that there was evidence supporting a claim of physical assault.Whether it was the lacrosse team or some random guy she slept with earlier that night, THAT is where there is no proof.

Do you believe a Duke Lacrosse player raped her, based upon the DNA evidence, the testimony of the other stripper, and all the other evidence that has come to light? yes or no?

What aren't you understanding? You're asking my opinion now? You said no evidence ever existed of a rape.She claimed she was raped by those players: FACT. A medical examination showed evidence of said rape: FACT.

Thanks, MTS.

 

[StrikeS2k]

See, that's just plain wrong. The medical examination concluded that there was evidence supporting a claim of physical assault.Whether it was the lacrosse team or some random guy she slept with earlier that night, THAT is where there is no proof.

Do you believe a Duke Lacrosse player raped her, based upon the DNA evidence, the testimony of the other stripper, and all the other evidence that has come to light? yes or no?

What aren't you understanding? You're asking my opinion now? You said no evidence ever existed of a rape.She claimed she was raped by those players: FACT. A medical examination showed evidence of said rape: FACT.

I never said no evidence existed. I said, and I quote, "Noone believes a rape occurred anymore, except maybe Jesse Jackson.". There's a HUGE difference. So when you called me out I simply wanted to see if you are the 2nd person, after Jesse, to actually believe a rape occurred. So please answer that question. It's not a difficult one. It's just yes or no.

 

[StrikeS2k]

I don't know if his immunity will stand, but I think there is a good chance he will be disbarred. He violated multiple provisions of the North Carolina Rules of Professional Conduct. One big one was ordering the Durham Police not to follow their own procedures in the line-up, which ultimately resulted in the three lacrosse players being charged. The procedures required five filler photos per every suspect. Nifong told police to confine the line-up to suspects, being only members of the lacrosse team. The Bar also accused Nifong of making an intentional agreement with Dr. Meehan to withhold exculpatory evidence, and accused Nifong of not only multiple ethics violations, but also of repeatedly lying to the court, breaking three state laws, and violating the Constitution. The attorney general’s special prosecutions division is handling the case against him. He is in deep doodoo.

Man, I completely forgot about the lineup. What a sham that was.

 

[MelvinTScupper]

See, that's just plain wrong. The medical examination concluded that there was evidence supporting a claim of physical assault.Whether it was the lacrosse team or some random guy she slept with earlier that night, THAT is where there is no proof.

Do you believe a Duke Lacrosse player raped her, based upon the DNA evidence, the testimony of the other stripper, and all the other evidence that has come to light? yes or no?

What aren't you understanding? You're asking my opinion now? You said no evidence ever existed of a rape.She claimed she was raped by those players: FACT. A medical examination showed evidence of said rape: FACT.

I never said no evidence existed. I said, and I quote, "Noone believes a rape occurred anymore, except maybe Jesse Jackson.". There's a HUGE difference. So when you called me out I simply wanted to see if you are the 2nd person, after Jesse, to actually believe a rape occurred. So please answer that question. It's not a difficult one. It's just yes or no.

Apparently, the medical person who examined her believed it enough to say "Yes, there is evidence consistent with rape."

 

[NCCommish]

See, that's just plain wrong. The medical examination concluded that there was evidence supporting a claim of physical assault.Whether it was the lacrosse team or some random guy she slept with earlier that night, THAT is where there is no proof.

Do you believe a Duke Lacrosse player raped her, based upon the DNA evidence, the testimony of the other stripper, and all the other evidence that has come to light? yes or no?

What aren't you understanding? You're asking my opinion now? You said no evidence ever existed of a rape.She claimed she was raped by those players: FACT. A medical examination showed evidence of said rape: FACT.

IIRC it showed sexual contact occured it didn't prove rape.

 

[Yankee23Fan]

Actually the medical evidence made public did not show evidence of "rape." It showed evidence of sexual intercourse with ejaculation.

Again, there is a difference. I hate sounding like an attorney all the damn time but certain words cannot just be throw out in the legal world. There was no "evidence of rape." Rape is a charge that has to be proven. There is only evidence of sexual intercourse and sometimes ejaculation. Further supporting evidence and testimony makes it rape or consentual.

 

[StrikeS2k]

I never said no evidence existed. I said, and I quote, "Noone believes a rape occurred anymore, except maybe Jesse Jackson.". There's a HUGE difference. So when you called me out I simply wanted to see if you are the 2nd person, after Jesse, to actually believe a rape occurred. So please answer that question. It's not a difficult one. It's just yes or no.

Apparently, the medical person who examined her believed it enough to say "Yes, there is evidence consistent with rape."

Again, you're completely avoiding the question. You're continuing to go down the evidence of rape or not angle when I've never said anything regarding that. I'm simply asking you to answer a simple question. The fact that you won't pretty much speaks for itself.

 

[MelvinTScupper]

See, that's just plain wrong. The medical examination concluded that there was evidence supporting a claim of physical assault.Whether it was the lacrosse team or some random guy she slept with earlier that night, THAT is where there is no proof.

Do you believe a Duke Lacrosse player raped her, based upon the DNA evidence, the testimony of the other stripper, and all the other evidence that has come to light? yes or no?

What aren't you understanding? You're asking my opinion now? You said no evidence ever existed of a rape.She claimed she was raped by those players: FACT. A medical examination showed evidence of said rape: FACT.

IIRC it showed sexual contact occured it didn't prove rape.

IIRC correctly, they charged them with rape, so it OBVIOUSLY supported that claim.

 

[Yankee23Fan]

See, that's just plain wrong. The medical examination concluded that there was evidence supporting a claim of physical assault.Whether it was the lacrosse team or some random guy she slept with earlier that night, THAT is where there is no proof.

Do you believe a Duke Lacrosse player raped her, based upon the DNA evidence, the testimony of the other stripper, and all the other evidence that has come to light? yes or no?

What aren't you understanding? You're asking my opinion now? You said no evidence ever existed of a rape.She claimed she was raped by those players: FACT. A medical examination showed evidence of said rape: FACT.

I never said no evidence existed. I said, and I quote, "Noone believes a rape occurred anymore, except maybe Jesse Jackson.". There's a HUGE difference. So when you called me out I simply wanted to see if you are the 2nd person, after Jesse, to actually believe a rape occurred. So please answer that question. It's not a difficult one. It's just yes or no.

Apparently, the medical person who examined her believed it enough to say "Yes, there is evidence consistent with rape."

One of the bar complaints against him is that he manipulated this information to fit his cause I'm pretty sure.

 

[MelvinTScupper]

Actually the medical evidence made public did not show evidence of "rape." It showed evidence of sexual intercourse with ejaculation.Again, there is a difference. I hate sounding like an attorney all the damn time but certain words cannot just be throw out in the legal world. There was no "evidence of rape." Rape is a charge that has to be proven. There is only evidence of sexual intercourse and sometimes ejaculation. Further supporting evidence and testimony makes it rape or consentual.

#### this. I'm done here. I've never thought any rape occurred. You're saying that the police and the DA were so crooked as to have completely manipulated everything involved. Ok. You're the lawyer, so you know how to spin a whole hell of a lot better than I do.We'll let the courts play it out.

 

[Chase Stuart]

Actually the medical evidence made public did not show evidence of "rape." It showed evidence of sexual intercourse with ejaculation.Again, there is a difference. I hate sounding like an attorney all the damn time but certain words cannot just be throw out in the legal world. There was no "evidence of rape." Rape is a charge that has to be proven. There is only evidence of sexual intercourse and sometimes ejaculation. Further supporting evidence and testimony makes it rape or consentual.

While I agree with you, we shouldn't lose sight of the fact that most rapes don't come with "evidence of rape." There is usually just evidence of sexual intercourse and often no evidence of ejaculation.I know you weren't arguing against it, but if the majority of rape cases show no "evidence of rape", that should be thrown in when you mention that there was no evidence of rape in this case.

 

[Chase Stuart]

See, that's just plain wrong. The medical examination concluded that there was evidence supporting a claim of physical assault.Whether it was the lacrosse team or some random guy she slept with earlier that night, THAT is where there is no proof.

Do you believe a Duke Lacrosse player raped her, based upon the DNA evidence, the testimony of the other stripper, and all the other evidence that has come to light? yes or no?

What aren't you understanding? You're asking my opinion now? You said no evidence ever existed of a rape.She claimed she was raped by those players: FACT. A medical examination showed evidence of said rape: FACT.

I never said no evidence existed. I said, and I quote, "Noone believes a rape occurred anymore, except maybe Jesse Jackson.". There's a HUGE difference. So when you called me out I simply wanted to see if you are the 2nd person, after Jesse, to actually believe a rape occurred. So please answer that question. It's not a difficult one. It's just yes or no.

Apparently, the medical person who examined her believed it enough to say "Yes, there is evidence consistent with rape."

One of the bar complaints against him is that he manipulated this information to fit his cause I'm pretty sure.

It should be noted that the credibility of the State is not always related to the culpability of the defendants. See Mark Fuhrman.

 

[Yankee23Fan]

Actually the medical evidence made public did not show evidence of "rape." It showed evidence of sexual intercourse with ejaculation.Again, there is a difference. I hate sounding like an attorney all the damn time but certain words cannot just be throw out in the legal world. There was no "evidence of rape." Rape is a charge that has to be proven. There is only evidence of sexual intercourse and sometimes ejaculation. Further supporting evidence and testimony makes it rape or consentual.

#### this. I'm done here. I've never thought any rape occurred. You're saying that the police and the DA were so crooked as to have completely manipulated everything involved. Ok. You're the lawyer, so you know how to spin a whole hell of a lot better than I do.We'll let the courts play it out.

You are missing the whole point and I'm not trying to be difficult.You are claiming certain things were either supported by evidence, or that they were at least good enough evidence wise to warrant an investigation. You may be right. In a perfect case.The problem here is that this isn't a perfect case. It's clear, given the initial complaints filed by the bar, that the prosecutor did something wrong here. With that in mind, you must call into question every single thing he did in this case. That isn't just my job as an attorney, but the job of the very office he worked for.So, you say that the medical examiner found enough to consider rape a good possibility and because of that he was at least doing his job in bringing the charges. The counter to that is that the acts of the tests are in question, as are the final reports given that the bar suspects he manipulated them.No rape occurs until a jury says it does. So you are trying to argue the end game without the proper context. The context of this initial question - did the DA act appropriately - has nothing to do with whether a rape occurred. It has solely to do with the actions he took in collecting the evidence, bringing the charges and prosecuting the defendants.At every step of this process he acted with malice in my opinion, and that's only going by what has been made public. I'm sure there is more. For the bar to go after him as strong as they are, and that they are considering adding more charges, only increases the liklihood that there is going to be enough fire below this smoke that he is in serious civil trouble.

 

[Yankee23Fan]

Actually the medical evidence made public did not show evidence of "rape." It showed evidence of sexual intercourse with ejaculation.Again, there is a difference. I hate sounding like an attorney all the damn time but certain words cannot just be throw out in the legal world. There was no "evidence of rape." Rape is a charge that has to be proven. There is only evidence of sexual intercourse and sometimes ejaculation. Further supporting evidence and testimony makes it rape or consentual.

While I agree with you, we shouldn't lose sight of the fact that most rapes don't come with "evidence of rape." There is usually just evidence of sexual intercourse and often no evidence of ejaculation.I know you weren't arguing against it, but if the majority of rape cases show no "evidence of rape", that should be thrown in when you mention that there was no evidence of rape in this case.

Granted.

 

[Chase Stuart]

No rape occurs until a jury says it does.

I don't think that jives with public perception. So does no murder occur until a jury says it does?

 

[Genedoc]

Actually the medical evidence made public did not show evidence of "rape." It showed evidence of sexual intercourse with ejaculation.Again, there is a difference. I hate sounding like an attorney all the damn time but certain words cannot just be throw out in the legal world. There was no "evidence of rape." Rape is a charge that has to be proven. There is only evidence of sexual intercourse and sometimes ejaculation. Further supporting evidence and testimony makes it rape or consentual.

While I agree with you, we shouldn't lose sight of the fact that most rapes don't come with "evidence of rape." There is usually just evidence of sexual intercourse and often no evidence of ejaculation.I know you weren't arguing against it, but if the majority of rape cases show no "evidence of rape", that should be thrown in when you mention that there was no evidence of rape in this case.

The alleged victim (AV) had "trauma consistent with rape", and multiple DNA samples were found. 5 or 6 IIRC. NONE of those DNA samples matched the samples found on the AV. So, one of a few things happened...1) She was raped, but DNA evidence pretty thoroughly exonerates the accused. There was no DNA from the accused under her nail, none of their hair on her, no semen - nada. It'd be amazingly difficult to violently gang rape someone and leave no trace of DNA evidence. 2) She's a call girl who had sex with multiple people before showing up to the party and who reported the alleged rape for reasons only known to her.

 

[Ditkaless Wonders]

Having prosecuted for 20 years I find Nifong a disgrace. I hope he is disbarred and publicly excoriated and then shunned. He was reckless in his disregard of his obligations as a prosecutor and he was the lowest form of political opportunist. That said we have governmental immunity for very good reasons. No one would ever agree to become a prosecutor without it as the very nature of the job guarantees disgruntled and bitter persons when you lock their families up. The lack of immunity would become a sword for criminals. Ideally I would like to see Bars expand their concept of victim compensation funds to compensate the wrongfully accused under circumstances such as this. If that meant my yearly dues were to rise, so be it.a

 

[Yankee23Fan]

No rape occurs until a jury says it does.

I don't think that jives with public perception. So does no murder occur until a jury says it does?

I mean the legal act, not the physical one.

 

[MelvinTScupper]

The alleged victim (AV) had "trauma consistent with rape", and multiple DNA samples were found. 5 or 6 IIRC. NONE of those DNA samples matched the samples found on the AV. So, one of a few things happened...

NOTHING EVER HAPPENED! EVER!!!!!111

 

[Flyin Pigs]

IIRC correctly, they charged them with rape, so it OBVIOUSLY supported that claim.

That kinda seems the crux of the whole problem with Nifong - that the evidence did not obviously support a claim of rape, but that he moved forward full steam ahead anyhow, including what the state BAR alledges are violations of law and the Constitution. (I'm commenting on that quote only and not the conversation between MTS and Strikes, who seem to me to be talking apples and oranges).

Ditkaless Wonders said:

"The sanction for the withholding of exculpatory evidence is the exclusion of the same. "

DW - maybe I'm misreading you here...if the prosecutor withholds evidence that helps the accused, excluding that evidence seems to reward the States misconduct. It seems that the sanction for withholding exculpatory evidence should be along the lines of what Nifong is now facing - action from the state BAR and if his conduct is egregious enough, civil remedy. Did I miss your point?

In my opinion, if there is even so much as a hint of evidence that a prosecutor withheld exculpatory evidence and then continued a prosecution of a charge as egregious as rape that summary judgement wouldn't be a concern. Whether there's enough for a jury is another ball of wax.

I'm a cop - if I hide or withhold evidence that tends to prove innocence, I'm toast. I'm sued, the department is sued, the city is sued. And we all should be and we all should lose.

My best guess, a lawsuit is leveled, there is no summary judgement, the case is settled to the tune of more money than I'll ever enjoy.

 

[Yankee23Fan]

Having prosecuted for 20 years I find Nifong a disgrace. I hope he is disbarred and publicly excoriated and then shunned. He was reckless in his disregard of his obligations as a prosecutor and he was the lowest form of political opportunist. That said we have governmental immunity for very good reasons. No one would ever agree to become a prosecutor without it as the very nature of the job guarantees disgruntled and bitter persons when you lock their families up. The lack of immunity would become a sword for criminals. Ideally I would like to see Bars expand their concept of victim compensation funds to compensate the wrongfully accused under circumstances such as this. If that meant my yearly dues were to rise, so be it.a

I agree with you. But given the circumstances here, this case might be an exception.

 

[MelvinTScupper]

DW - maybe I'm misreading you here...if the prosecutor withholds evidence that helps the accused, excluding that evidence seems to reward the States misconduct. It seems that the sanction for withholding exculpatory evidence should be along the lines of what Nifong is now facing - action from the state BAR and if his conduct is egregious enough, civil remedy. Did I miss your point?

To clarify my point of view. It's obvious that these would be the claims. My point is that it is going to be VERY difficult to prove he did these things with malicious intent.

 

[Yankee23Fan]

DW - maybe I'm misreading you here...if the prosecutor withholds evidence that helps the accused, excluding that evidence seems to reward the States misconduct. It seems that the sanction for withholding exculpatory evidence should be along the lines of what Nifong is now facing - action from the state BAR and if his conduct is egregious enough, civil remedy. Did I miss your point?

To clarify my point of view. It's obvious that these would be the claims. My point is that it is going to be VERY difficult to prove he did these things with malicious intent.

And you are probably right. We have lawyers here arguing over it, so clearly a jury full of layman will as well.The problem with civil cases is that if you survive summary judgment, all bets are off. I think a case against Nifong survives. I'm not convinced it will, but I think the odds are good. Any attorney will tell their client that if they are looking at losing SJ, you settle, and settle quick.

 

[Flyin Pigs]

Having prosecuted for 20 years I find Nifong a disgrace. I hope he is disbarred and publicly excoriated and then shunned. He was reckless in his disregard of his obligations as a prosecutor and he was the lowest form of political opportunist. That said we have governmental immunity for very good reasons. No one would ever agree to become a prosecutor without it as the very nature of the job guarantees disgruntled and bitter persons when you lock their families up. The lack of immunity would become a sword for criminals. Ideally I would like to see Bars expand their concept of victim compensation funds to compensate the wrongfully accused under circumstances such as this. If that meant my yearly dues were to rise, so be it.a

I like that idea as well.I agree with the need for immunity. You don't think that Nifong did enough to pierce this immunity? (ETA - what do you think a Pros would have to do to pierce this veil?) Honest question - and I'll defer to your experience.

(got my JD in 99 but never practiced)

 

[Ditkaless Wonders]

Remember, the immunity that protects Nifong is the same immunity that protects the judge who will be ruling on this matter at the threshold of summary judgment. Few judges will want to set precedent that thier own immunity can be erroded away.

Ultimately this is a price we pay for our legal system. Some innocent persons can be victimized by the process of accusation and be out substantial funds. Maybe this is a corallary to the 1000 guilty going free thing. Our sustem is not perfect.

I'm stunned by the legal fees these young men incurred. They never went to trial. Their attorneys where doing a lot of billing for a case that never really developed. Certainly that's their right to fight all the minutia and publicity in the case, and certainly they had to investigate where it appers the D.A. didn't, but my gosh that's a pricey defense for a case that never saw the courtroom. Perhaps it is even reasonable, and if so is quite a cautionary tale to prosecutors about the extent of damage they can do and about exercising restraint in the use of their office.

 

[NCCommish]

Remember, the immunity that protects Nifong is the same immunity that protects the judge who will be ruling on this matter at the threshold of summary judgment. Few judges will want to set precedent that thier own immunity can be erroded away. Ultimately this is a price we pay for our legal system. Some innocent persons can be victimized by the process of accusation and be out substantial funds. Maybe this is a corallary to the 1000 guilty going free thing. Our sustem is not perfect. I'm stunned by the legal fees these young men incurred. They never went to trial. Their attorneys where doing a lot of billing for a case that never really developed. Certainly that's their right to fight all the minutia and publicity in the case, and certainly they had to investigate where it appers the D.A. didn't, but my gosh that's a pricey defense for a case that never saw the courtroom. Perhaps it is even reasonable, and if so is quite a cautionary tale to prosecutors about the extent of damage they can do and about exercising restraint in the use of their office.

I understand what you are saying but by the same token it seems to me Nifong relied on that to do whatever he wanted. Thre has to be a line and I think he crossed it. Unlimited immunity is as bad as no immunity IMO.

 

[Ditkaless Wonders]

Having prosecuted for 20 years I find Nifong a disgrace. I hope he is disbarred and publicly excoriated and then shunned. He was reckless in his disregard of his obligations as a prosecutor and he was the lowest form of political opportunist. That said we have governmental immunity for very good reasons. No one would ever agree to become a prosecutor without it as the very nature of the job guarantees disgruntled and bitter persons when you lock their families up. The lack of immunity would become a sword for criminals. Ideally I would like to see Bars expand their concept of victim compensation funds to compensate the wrongfully accused under circumstances such as this. If that meant my yearly dues were to rise, so be it.a

I like that idea as well.I agree with the need for immunity. You don't think that Nifong did enough to pierce this immunity? (ETA - what do you think a Pros would have to do to pierce this veil?) Honest question - and I'll defer to your experience.

(got my JD in 99 but never practiced)

Good question. Once he was confronted with an alibi he could investigate, and as his witnesses started recanting, he had an obligation to re-evaluate his case. He did this and ultimately dismissed a count. Had he not done so that would have been sufficient evidence of malice or abuse of office. My difficulty is that he seems to have dragged his feet while the election was pending. I suspect bad motives as does everyone else, but proving this would be required and mt suspicion does not equal proof.I want this guy gutted and his license gone specifically because I believe it likely he abused his office and that holds my profession up to righteous contempt. The loss of immunity, however, will have chilling effects to the safety of the public as a whole as prosecution of crime will grind to a halt. An unacceptable reaction and legacy to one jackass, even considering the damage he did. That's why I would like a third way. A victims compensation fund that could address this.

 

[Genedoc]

Remember, the immunity that protects Nifong is the same immunity that protects the judge who will be ruling on this matter at the threshold of summary judgment. Few judges will want to set precedent that thier own immunity can be erroded away. Ultimately this is a price we pay for our legal system. Some innocent persons can be victimized by the process of accusation and be out substantial funds. Maybe this is a corallary to the 1000 guilty going free thing. Our sustem is not perfect. I'm stunned by the legal fees these young men incurred. They never went to trial. Their attorneys where doing a lot of billing for a case that never really developed. Certainly that's their right to fight all the minutia and publicity in the case, and certainly they had to investigate where it appers the D.A. didn't, but my gosh that's a pricey defense for a case that never saw the courtroom. Perhaps it is even reasonable, and if so is quite a cautionary tale to prosecutors about the extent of damage they can do and about exercising restraint in the use of their office.

They got some the best (and most $$$) defense attorney's in the state of NC, and left no stone unturned. Many of the other non-charged players also secured attorneys because of the wide net the DA was fishing with. Still, $3M is a LOT of defending....

 

[dickey moe]

Nifong =

 

[Flyin Pigs]

Good question. Once he was confronted with an alibi he could investigate and as his witnesses started recanting he had an obligation to re-evaluate his case. He did this and ultimately dismissed a count. Had he not done so that would have been sufficient evidence of malice or abuse of office. My difficulty is that he seems to have dragged his feeet while the election was pending. I suspect bad motives as does everyone else, but proving this would be required.

I want this guy gutted and his license gone specifically because I believe it likely he abused his office and that holds my profession up to righteous contempt. The loss of immunity, however, will have chilling effects to the safety of the public as a whole as prosecution of crime will grind to a halt. An unacceptable rection and legacy to one jackass even considering the damage he did. That's why I would like a third way. A victims compensation fund that could address this.

OK, I follow. Good point on the dropping of the count. I agree that he seemed to use this case to motivate his constituents and push an election in his favor. Proving it - I guess he probably didn't send out too many e-mails breaking down a plan for railroading a few college kids by withholding evidence so that he could get reelected as a DA...Thanks DW

 

[Genedoc]

Having prosecuted for 20 years I find Nifong a disgrace. I hope he is disbarred and publicly excoriated and then shunned. He was reckless in his disregard of his obligations as a prosecutor and he was the lowest form of political opportunist. That said we have governmental immunity for very good reasons. No one would ever agree to become a prosecutor without it as the very nature of the job guarantees disgruntled and bitter persons when you lock their families up. The lack of immunity would become a sword for criminals. Ideally I would like to see Bars expand their concept of victim compensation funds to compensate the wrongfully accused under circumstances such as this. If that meant my yearly dues were to rise, so be it.a

I like that idea as well.I agree with the need for immunity. You don't think that Nifong did enough to pierce this immunity? (ETA - what do you think a Pros would have to do to pierce this veil?) Honest question - and I'll defer to your experience.

(got my JD in 99 but never practiced)

Good question. Once he was confronted with an alibi he could investigate, and as his witnesses started recanting, he had an obligation to re-evaluate his case. He did this and ultimately dismissed a count. Had he not done so that would have been sufficient evidence of malice or abuse of office. My difficulty is that he seems to have dragged his feet while the election was pending. I suspect bad motives as does everyone else, but proving this would be required and mt suspicion does not equal proof.I want this guy gutted and his license gone specifically because I believe it likely he abused his office and that holds my profession up to righteous contempt. The loss of immunity, however, will have chilling effects to the safety of the public as a whole as prosecution of crime will grind to a halt. An unacceptable reaction and legacy to one jackass, even considering the damage he did. That's why I would like a third way. A victims compensation fund that could address this.

Excellent points, all, and I don't disagree with anything you've said. I'm more than happy to rely on your hands on experience. The State attorney general, who I have a lot of respect for and know personally, essentially said (without saying) the alleged victim is borderline insane.

"Our investigators who talked with her and the attorneys who talked with her over a period of time think she may actually believe the many different stories she has been telling," Cooper said. "...There are records under seal that I am not going to talk about."

The records he won't discuss are institutionalizations. He also specifically said that his investigators conclude the accused "were innocent", not that he couldn't make a case. Powerful words from the state's lead attorney.

 

[StrikeS2k]

Having prosecuted for 20 years I find Nifong a disgrace. I hope he is disbarred and publicly excoriated and then shunned. He was reckless in his disregard of his obligations as a prosecutor and he was the lowest form of political opportunist. That said we have governmental immunity for very good reasons. No one would ever agree to become a prosecutor without it as the very nature of the job guarantees disgruntled and bitter persons when you lock their families up. The lack of immunity would become a sword for criminals. Ideally I would like to see Bars expand their concept of victim compensation funds to compensate the wrongfully accused under circumstances such as this. If that meant my yearly dues were to rise, so be it.a

I like that idea as well.I agree with the need for immunity. You don't think that Nifong did enough to pierce this immunity? (ETA - what do you think a Pros would have to do to pierce this veil?) Honest question - and I'll defer to your experience.

(got my JD in 99 but never practiced)

Good question. Once he was confronted with an alibi he could investigate, and as his witnesses started recanting, he had an obligation to re-evaluate his case. He did this and ultimately dismissed a count. Had he not done so that would have been sufficient evidence of malice or abuse of office. My difficulty is that he seems to have dragged his feet while the election was pending. I suspect bad motives as does everyone else, but proving this would be required and mt suspicion does not equal proof.I want this guy gutted and his license gone specifically because I believe it likely he abused his office and that holds my profession up to righteous contempt. The loss of immunity, however, will have chilling effects to the safety of the public as a whole as prosecution of crime will grind to a halt. An unacceptable reaction and legacy to one jackass, even considering the damage he did. That's why I would like a third way. A victims compensation fund that could address this.

Excellent points, all, and I don't disagree with anything you've said. I'm more than happy to rely on your hands on experience. The State attorney general, who I have a lot of respect for and know personally, essentially said (without saying) the alleged victim is borderline insane.

"Our investigators who talked with her and the attorneys who talked with her over a period of time think she may actually believe the many different stories she has been telling," Cooper said. "...There are records under seal that I am not going to talk about."

The records he won't discuss are institutionalizations. He also specifically said that his investigators conclude the accused "were innocent", not that he couldn't make a case. Powerful words from the state's lead attorney.

He also said

Cooper called for the passage of a state law that would allow the North Carolina Supreme Court to remove a prosecutor "who needs to step away from a case where justice demands.""This case shows the enormous consequences of overreaching by a prosecutor," he said.

LOL. Looks like they're going out of their way to try to appease the accused. Probably trying to minimize the damage Nilfong did due to the inevitable lawsuits but it ain't gonna happen.

 

[whoknew]

I am not much for suing but in this case if I were them I would sue the DA's office for everything I could.

Which is nothing. You can't sue public officials.

You can if there is misconduct and malicious prosecution. And I definitely think that there is a strong argument that there was in this case by Nifong.

I definitely think it "looks like it" but I am nearly 100% certain you couldn't prove it. I hope I'm wrong, and the ####er burns, but I'd bet against it. These kids have already spent a reported $3M defending themselves; maybe they'll find some pro bono...

I heard this on Dan Patrick today, too. That seems like an awful lot for a case that didn't even go to trial.

 

[Ditkaless Wonders]

I suspect Duke will reach out quietly through various alum contacts to try to make the accused somewhat whole. They don't want their institution to spend any more time in this spotlight than is necessary.

 

[phillyfan72]

Is Jessie Jackson going to apologize?

 

[phillyfan72]

I am not much for suing but in this case if I were them I would sue the DA's office for everything I could.

Which is nothing. You can't sue public officials.

I am not so sure. With the ethics issues I have a feeling there is a case here but you may be right.

I would like to see Durham District Attorney Mike Nifong disbarred, or at least removed from his position as DA. His whole goal in this case was to get himself re-elected as DA.

I totally agree. He used this case to further his career. He deserves anything he gets.

 

[simey]

I am not much for suing but in this case if I were them I would sue the DA's office for everything I could.

Which is nothing. You can't sue public officials.

I am not so sure. With the ethics issues I have a feeling there is a case here but you may be right.

I would like to see Durham District Attorney Mike Nifong disbarred, or at least removed from his position as DA. His whole goal in this case was to get himself re-elected as DA.

I totally agree. He used this case to further his career. He deserves anything he gets.

I just saw on tv where the attorney general was asked what nifong's future holds as DA, and he said he will wait until the investigation is over to discuss that, but he added that nifong may face criminal charges.

 

[Jesse Jackson]

Is Jessie Jackson going to apologize?

No chance in hell honkey

 

[Genedoc]

I suspect Duke will reach out quietly through various alum contacts to try to make the accused somewhat whole. They don't want their institution to spend any more time in this spotlight than is necessary.

I dunno. Many of those who are close to the players really feel like that bridge is burned, and anything Duke is doing/has done is too little, too late. We shall see, though.

 

[Maurile Tremblay]

Great article by Radley Balko. I think he gets this one exactly right.

Duke

Posted by Radley Balko on April 12, 2007

I'm happy for the Duke lacrosse players. And I'm glad that the 90 percent of America that otherwise doesn't pay attention to the flaws, biases, and corruptions in the criminal justice system got to see a real, live, outrageous injustice play out on national television before their very eyes. And I'd love to think the upside to all of this would be increased scrutiny on overly zealous prosecutors and the incredible damage they can do to someone if they wield their power inappropriately (I have my doubts). I'd also like nothing more than to see Mr. Nifong stripped of his office, his ability to practice law and--if it's proven he broke the law--his freedom.

That said, this statement from Glenn Reynolds doesn't quite cut it:

In the conventional imagination, it used to be -- see To Kill a Mockingbird or reports of the Scottsboro rape trial -- that it was the noble fairness-obsessed lefties who supported due process against the ignorant right-wing hicks who tried to lynch people out of a mixture of racism, political opportunism borne of racism, journalistic sensationalism, and sheer meanness. Now the hats have switched. That's worth noting.

I'm not left-wing or right-wing (though I've been accused of both).But the reason why the narrative for most of the last century has been that of noble, left-wing ACLU and NAACP lawyers coming to the aid of black people wrongly accused by racist white people is because for most of the last century, that's the way it has actually happened. Over and over and over. And I'm not just talking about the Jim Crow era. See Tulia. Or Hearne. Or the dozens of people freed by the liberal lawyers at the Innocence Project.

And let's not go overboard in heaping praise on the Duke players' more conservative defenders. Reynolds is an honest-to-goodness civil libertarian. So I don't include him in this. But to hear law-and-order right-wingers like Sean Hannity, Bill O'Reilly, Michael Savage, or the Powerline crew scream about prosecutoral excess, the rights of the accused, and political opportunism on the part of a prosecutor these past few months really strained all credulity. Yes. I'd love to think their interest in this case was motivated solely by their sense of justice. But come on. Does anyone not think the race and class of the accused, the race and class of the accuser, and the politics of feminism and anti-feminism had something to do with their sudden embrace of and familiarity with NACDL talking points?

Maybe I'm wrong. Maybe these conservatives have gotten religion. Maybe in the future, O'Reilly, Hannity, & Co. will actually make a cause celebre about cases where the accused aren't rich white kids with high-paid attorneys accused of raping a poor black woman. I'm skeptical.

Yes, Nifong was rotten to the core. Yes, the liberals who convicted the lacrosse team in the press rushed to judgment, and were dead wrong. But listening to the right wing over the last several months, you'd think this kind of thing only happens to white people, and only liberal, bleeding-heart prosecutors like Nifong are capable of unjust, overtly political, race-fueled witch hunts. The unique thing about this case is that everything happened in reverse. So it tested the principles and allegiances of everybody. The real credit I think goes to the handful of liberals who stood by the lacrosse team, bucking the civil rights groups and feminist groups on the other side.

These kinds of injustices happen to all people, of course. It's just that most of them don't make the newspapers. They do also tend to happen disproportionately to black people, and to poor people who can't afford big-shot attorneys. And they happen far more frequently than most conservatives I know would ever care to acknowledge.

The right-wingers who left their law-and-order perch to hustle to these players' defense were no less politically motivated than the left-wingers who left their rights-of-the-accused perch to condemn them.

The right-wingers just happened to be right this time.

 

[Christo]

I am not much for suing but in this case if I were them I would sue the DA's office for everything I could.

Which is nothing. You can't sue public officials.

You can if there is misconduct and malicious prosecution. And I definitely think that there is a strong argument that there was in this case by Nifong.

I definitely think it "looks like it" but I am nearly 100% certain you couldn't prove it. I hope I'm wrong, and the ####er burns, but I'd bet against it. These kids have already spent a reported $3M defending themselves; maybe they'll find some pro bono...

Prosecutors only have qualified immunity. And the burden of proof is only a preponderance of of the evidence.

 

[Christo]

I think you two are using too much emotion here. OJ was found innocent.

In any case, I hope you're right.

Not in the civil case.

 

[Christo]

DW - maybe I'm misreading you here...if the prosecutor withholds evidence that helps the accused, excluding that evidence seems to reward the States misconduct. It seems that the sanction for withholding exculpatory evidence should be along the lines of what Nifong is now facing - action from the state BAR and if his conduct is egregious enough, civil remedy. Did I miss your point?

To clarify my point of view. It's obvious that these would be the claims. My point is that it is going to be VERY difficult to prove he did these things with malicious intent.

Qualified immunity does not require a showing of malice. In fact, the Supreme Court created the qualified immunity standard because the subjective malice standard was protecting too many officials. The qualified immunity standard shields government officials performing discretionary functions from liability for civil damages insofar as their conduct does not violate "clearly established" statutory or constitutional rights of which a reasonable person would have known.

 

[MelvinTScupper]

I think you two are using too much emotion here. OJ was found innocent.

In any case, I hope you're right.

Not in the civil case.

Yeah, he's really struggling now.

 

[MelvinTScupper]

DW - maybe I'm misreading you here...if the prosecutor withholds evidence that helps the accused, excluding that evidence seems to reward the States misconduct. It seems that the sanction for withholding exculpatory evidence should be along the lines of what Nifong is now facing - action from the state BAR and if his conduct is egregious enough, civil remedy. Did I miss your point?

To clarify my point of view. It's obvious that these would be the claims. My point is that it is going to be VERY difficult to prove he did these things with malicious intent.

Qualified immunity does not require a showing of malice. In fact, the Supreme Court created the qualified immunity standard because the subjective malice standard was protecting too many officials. The qualified immunity standard shields government officials performing discretionary functions from liability for civil damages insofar as their conduct does not violate "clearly established" statutory or constitutional rights of which a reasonable person would have known.

Keep me up on it. I think you're wrong.