Monday, July 16, 2007

Perspective

Mike Nifong, the disgraced prosecutor in the Duke lacrosse case, was a scapegoat. Not to say he wasn't wrong or unethical or even criminal. However, relative to the conduct of other attorneys in other prominent sports related cases, he is a choir boy.

Do you know how difficult it is to get disbarred? Difficult. Very, very difficult. Most cases of disbarment center around the theft of client's money. Nifong was disbarred mostly for calling the accused, "hooligans." He was also guilty of some inappropriate (but not necessarily malicious) withholding of evidence and maybe the general understaffed and overworked neglect that plagues the realities of working in a prosecutors' office (or typical law practice, for that matter). The defense team had vast resources and used those resources to punish Nifong. It's possible that Nifong was the vile man the defense painted him to be. It's possible that he's not.

Compare Nifong to some other attorneys.

David McDade, the Douglas County prosecutor of the Genarlow Wilson case is currently under fire for potential distribution of child pornography. Nifong engaged in some "sticks and stones" antics, but child pornography? That's bad.

McDade distributed 35 copies of video portraying Genarlow Wilson, 17, engaging in sex with a minor female, 15, to various parties, including media, without even blurring out the faces of the minors involved. McDade says Georgia's open records laws would have compelled the release of the video regardless of his distribution. The federal prosecutor disagrees. The United States prosecutor in Georgia, David Nahmias, issued an opinion that the video constitutes child pornography. Yet, he mildly requested that McDade stop distributing the video - three plus years after the fact. Although even merely viewing child pornography is illegal, McDade is not presently facing disbarment.

A Georgia state senator, Emanuel Jones, has called for McDade's disbarment. Under the "Nifong standard," he should be disbarred a million times.

Troy Ellerman, the attorney who leaked grand jury testimony in the Barry Bonds BALCO matter, pleaded guilty and was sentenced to thirty months in prison.

And he deserves it. Leaking grand jury testimony is also very bad.

Grand jury proceedings are secret and essential to the government's right to investigate. The violation of grand jury secrecy is a violation of the most fundamental of legal principles. It's akin to not reading Miranda rights or not granting a person a jury of their peers. It's not as sexy as insulting some dudes on the word of some stripper, but it's reprehensible nonetheless. Ellerman got what he deserved.

If Mike Nifong's disbarment was deserved, I hope the standard is applied evenly. Too many lawyers play games with the media and the public. If Nifong's shame was a warning to the Nancy Grace's and all the other talking heads alleging to give informed, neutral legal opinions, then his disbarment was the beginning of a positive trend. If not? Just remember to maintain some perspective on the "severity" of his offenses.

31 comments:

Anonymous said...

You must be joking, Mike Nifong used the vast powers and resources of the State of North Carolina to try to send three demonstrably innocent men to jail for 30 years. To suggest that the defense attorneys had more resources than the DA is absurd.

He lied to the media, defense attorneys, the public, multiple judges, he hid evidence, and inflamed the community, all to win an election and get a little more money in his pension.

This man with 28 years experience proclaimed he was sure a rape had happened and even described and demonstrated how the victim fought when he had never so much as spoken to her.

Mike Nifong is pure evil and deserves to be in jail.

The HCIC said...

No, I'm not joking.

I wrote the post from my perspective as a lawyer. That may make me less credible, but what Nifong did was not atypical, even if it was wrong (which I concede is possible). At a minimum, I think Nifong's "crimes" are subjective as a member of the profession.

Still, a lawyer leaking child pornography or grand jury testimony is FAR more heinous. Yet, they aren't being raked over the coals as the devil incarnate. Nifong's situation is strongly fueled by media and general perception - even if he is a disgrace.

And, simply, you are naive to think that defense attorneys that racked up millions of dollars of fees don't have more resources than Nifong or the county of Durham or the state of North Carolina. Just naive.

Anonymous said...

You ARE kidding or deluded if you think Nifong is being called to task solely for calling the Lacrosse team hooligan. From NC disbarment order report-- Nifong:
" never providing the Duke Defendants on or after November 16, 2006, and prior to his recusal on January 12, 2007, a report setting forth the results of all tests or examinations conducted by DSI, including the existence of DNA from multiple unidentified males on the rape kit items and including written or recorded memorializations of Dr. Meehan's oral statements, Nifong:

i. did not, after a reasonably diligent inquiry, make timely disclosure to the defense of all evidence or information required to be disclosed by applicable law, rules of procedure, or court opinions, including all evidence or information known to him that tended to negate the guilt of the accused, in violation of current Rule 3.8(d) of the Revised Rules of Professional Conduct; and

ii. failed to disclose evidence or information that he knew, or reasonably should have known, was subject to disclosure under applicable law, rules of procedure or evidence, or court opinions, in violation of current Rule 3.4(d)(3) of the Revised Rules of Professional Conduct.
(d) By falsely representing to the Court and to counsel for the Duke Defendants that he had provided all discoverable material in his possession and that the substance of all Dr. Meehan's oral statements to him concerning the results of all examinations and tests conducted by DSI were included in DST's written report, Nifong made false statements of material fact or law to a tribunal in violation of Rule 3.3(a)(1), made false statements of material fact to a third person in the course of representing a client in violation of Rule 4.1, and engaged in conduct involving dishonesty, fraud, deceit or misrepresentation in violation of Rule 8.4(c) of the Revised Rules of Professional Conduct.

(e) By representing or implying to the Court that he was not aware of the existence on rape kit items of DNA from multiple unidentified males who were not members of the lacrosse team and/or that he was not aware of the exclusion of that evidence from. DSI's written report at the beginning of the December 15, 2006, hearing, Nifong made false statements of material fact or law to a tribunal in violation of Rule 3.3(a)(1) and engaged in conduct involving dishonesty, fraud, deceit or misrepresentation in violation of Rule 8.4(c) of the Revised Rules of Professional Conduct.

(f) By falsely representing to the Grievance Committee of the State Bar that:


(i) he did not realize that the test results revealing the presence of DNA from multiple unidentified males on the rape kit items were not included in DSI's report when he provided it to the Duke Defendants or thereafter, and

(ii) his statements to the Court at the beginning of the December 15 hearing referred not to the existence of DNA from multiple unidentified males on the rape kit items but to the Duke Defendants' purported allegation that he had engaged in an intentional attempt to conceal such evidence,

Nifong made knowingly false statements of material fact in connection with a disciplinary matter in violation of Rule 8.1 (a), and engaged in conduct involving dishonesty, fraud, deceit or misrepresentation in violation of Rule 8.4(c) of the Revised Rules of Professional Conduct."

In sum, Nifong engaged in a pattern of conduct designed to knowingly frame students he had every reason to believe were actually innocent. He did so for self serving reasons and he manipulated the resources at his disposal (and yes they are vast) including the DPD to do so. If there are other prosecutors as bad as this, go after them. Don't give Nifong a pass.

Anonymous said...

You wrote, "Nifong was disbarred mostly for calling the accused hooligans." I don't think you would find many people (especially lawyers) who would agree with your statement.

The bar filed its initial complaint against Nifong for his pretrial statements on December 28, 2006. On January 24, 2007 a new (and much more serious) complaint was filed against Nifong for allegedly (now proven) withholding DNA evidence and then lying about it to judges and the bar itself.

To say that Nifong was disbarred mostly for calling the accused hooligans is just plain false. In their 24 page finding of fact which lays out the crimes of Mike Nifong the word hooligans is mentioned once.

It's also nice to see you concede it's possible that what Nifong did was wrong.

One last point, just because other prosecutors have yet to get their just desserts doesn't mean Nifong's actions were any less reprehensible. The Genarlow Wilson case is a disgrace to the American justice system.

By the way, although I disagree with a lot of what you've written I enjoy and admire your blog and love the Hoyas. Good luck.

Anonymous said...

"Nifong was disbarred mostly for calling the accused, "hooligans." He was also guilty of some inappropriate (but not necessarily malicious) withholding of evidence and maybe the general understaffed and overworked neglect that plagues the realities of working in a prosecutors' office (or typical law practice, for that matter). "

Did you bother to inform yourself about this case before writing this drivil? Nifong engaged in deliberate conduct designed to railroad innocent people in order to pander to race divisions in the community and get himself elected. The state bar demonstrated that this conduct was intentional and not negligent or the result of oversight. The state bar report establishes that Nifong repeatedly lied to the Court about esculpatory evidence. He was not mistaken or overworked. They showed that he KNEW the facts -- that multiple DNA on the so-called "victim" did not match the defendents-- but he covered that up in collusion with the DNA lab director and then lied about it. Nifong also orchestrated a laughable line-up designed solely to railroad three people--any three people. All he cared about was getting elected. It is hard to see how much worse his conduct could have been. AND yes, framing innocent people is FAR worse than leaking grand jury testimony. Where is your moral compass?

The HCIC said...

Anon - I appreciate your effort to dig up the NC bar report. I am aware of the findings.

Still, the bar panel is a far cry from a jury of peers. The panel's decision was based in reason, but not immune from subjectivity and political, media driven pressure. How would it have looked if they didn't disbar him? I was not surprised that Nifong was disbarred. It was going to happen.

Nifong did bad things, but there are plenty of other district attorneys who prosecute innocent people for nefarious reasons and make mistakes in the practice of law. I'm just saying Nifong was singled out. If everybody is going to be held to the same professional standards, that would be a good thing. But the country may find itself short on district attorneys.

And don't ignore the fact that some or all of the lacrosse players are going after Nifong for a civil judgment. Pursuing the disbarment bolsters that potential case.

And all this outrage is proving my point. Why are you all worked up over Nifong in particular? He is not the poster boy for bad lawyering. There are far worse out there. I point out some who did way worse things (yes, leaking grand jury testimony is way worse), and you maintain tunnel vision and a ready pitchfork for Nifong. If you get too caught up with lightweight criminals like Nifong, you'll overlook the real villains out there.

Anonymous said...

Jeez, I'm appalled that you think that Nifong's actions are "typical" of prosecutors. If prosecutors typically frame innocents, rig line-ups and conspire to withhold material evidence, then we are in worse shape in this country than I thought. If prosecutors routinely arrest defense witnesses for purposes of intimidation, we need to address those problems, not excuse them. You wierdly paint Nifong as a victim. I suggest you read the state attorney general report and the state bar report as well. Nifong has earned his public censure and prison time as well. Any one of us could have been his victim. He didn't care that he was indicting people who weren't even at the party at the time of the alleged rape. Testimony showed that he was well aware that the accuser was not credible. Cops described his crusade to indict at all costs. Don't waste your time defending the indefensible. Nifong abused his office and discredited prosecutors everywhere. I agree with the poster who said he is pure evil.

The HCIC said...

Everybody is defensible. That's why I have a job.

There are two sides to every story, even Nifong's.

You said "if prosecutors typically frame innocents, rig line-ups and conspire to withhold material evidence." Obviously, that's a pretty emotional statement, but it could be restated as district attorneys prosecuting innocent people and making egregious mistakes in the practice of law. Yes, that does happen every day. It may not necessarily because they are reprehensible and evil to the core. They may just be incompetent, cocky, prideful, sloppy, not detail oriented, lazy, overworked, running for office, gunning for a promotion, feeding a God complex, etc. They may be reprehensible too. Like I said, if everybody is held to the same standards as Nifong, that would be good.

Anonymous said...

So, HCIC, what about your comment that Nifong was disbarred "mostly because he called the players hooligans?" Surely you cannot stand by that. If so, I'd like to know who else shares this opinion.....my guess is you're the only one.

The HCIC said...

I said that based on my perception of media reporting of the case. I mainly read print media, rather than tv news. Almost every article I read summarized Nifongs transgressions as "calling the players 'hooligans' and withholding DNA evidence". So, if our media sources are different, obviously our perceptions of the coverage may differ too.

That said, I definitely think that the outrage that led to the chain of events was fueled by Nifong convicting the players via the media. Even if he deserved it, Nifong was disbarred mostly because the case was so high profile. Lawyers do bad stuff all the time.

Anonymous said...

HCIC, Its not surprising that emotion is at play in this case, I for one feel for the Lacrosse team parents and worry about sending my young and trusting daughter into a world where people are targeted for criminal prosecution based on personal agenda. I feel too for the students who were put through living hell.

But surely it is inappropriate to dismiss the comments your post provoked as mere rantings of the overwrought?

It is well established that Nifong's malfeasance was deliberate and informed. Indeed, it is the characterization of his conduct in your original post --as merely the result of overwork or inattention-- that triggers the passionate but accurate, even measured (under the circumstances here) responses.

Adrian said...

HCIC,

The reason Nifong is held as the "devil incarnate" as you say is because of the media attention HE tried to heap upon HIMSELF during the case (as well as Sharpton and Jackson) in order to get re-elected. HE was the one to sit in front of a room of black people and basically incriminate the players. HE held press conferences, etc.

The more attention you try to heap upon yourself and the higher you try to climb, the farther you are going to fall. that is what this boils down too. I understand there are far worse lawyers who are doing bad things, but the difference is that they are not trying to garner media attention.

The more you say, "look at me" then the more good AND bad things will cast a bigger shadow.

Anonymous said...

HCIC, after reading your first paragraph, I thought you were merely ignorant of the facts regarding Mike Nifong.

After reading your inflammatory claim that a particular prosecutor was distributing "child pornography", and then discovering that what you were referring to was the videotape that Genarlow Wilson himself made, documenting the criminal acts which that prosecutor was prosecuting him for, I quickly realized that you wouldn't really care what the facts were, since no matter what they were you'd be spinning them towards the same agenda anyways.

"... guilty of some inappropriate (but not necessarily malicious) withholding of evidence ..." Inappropriate? Yes. Illegal? Yes. And if I thought you had enough honor to answer even a simple question truthfully, I would ask you, when a prosecutor has knowingly and willingly decided to withhold evidence that he knows is exculpatory, has knowingly and willingly lied to the defense and to the court and to the world about the existence of that evidence, and has even entered into criminal conspiracy with others to withhold that evidence, just how much do you think it matters whether the motive for that crime is "malicious"? Do we give more credit to an embezzler that he didn't do his embezzling "maliciously"? An embezzler actually comes off better in the comparison; he doesn't see the faces of the people whose money he's taking. Nifong knew the faces of the young men he was framing and calmly proceeded with manufacturing phony lineups, arresting alibi witnesses and concealing evidence.

The HCIC said...

Anon, I feel sorry for everybody involved. With rare exception, everybody deserves sympathy.

I'm just saying it's possible that the accurate characterization of Nifong is slightly deeper than Nifong is "pure evil." Nifong went into apology mode (although not wholehearted) pretty quickly. He quickly started trying to save his ass. So I never felt satisfied that the whole story was told. That could just be me though.

Adrian, I agree with your point that Nifong brought it on himslf. Too many lawyers play the "media game" now. I'm just saying he was not atypical in doing that. For example, consider Nancy Grace. A woman killed herself (the Duke guys weren't even incarcerated) after being berated for the purpose of creating a entertaining TV show, not on behalf of an alleged victim (even an uncredible one). I can't recall that Grace was even put on a hiatus. She is a lawyer too, but she is one of many, like Nifong, who are more concerned with being in front of the cameras than properly representing the profession.

And, of course, I don't know the race of every single reader, but this is one of the rare high profile stories where an average White male was victimized by the justice system. I've seen this before. So maybe experience has made me numb and cynical. But I understand that this story resonates for certain people in a unique way.

The HCIC said...

Anon - Nifong violated the rules of the North Carolina state bar. They did not make a criminal determination on his actions. They judged him to be an unfit lawyer. Maybe he will be judged to be so in the future.

And even viewing child pornography is illegal. The viewing, distribution and creation of child pornography are all separate offenses.

It does make a difference whether something whether something was done negligently, recklessly or maliciously. For example, that's the difference between murder and manslaughter.

I do not have an agenda. The SOLE point of the post was to compare Nifong's trangressions to some others. It is not a defense of Nifong. Perspective is always appropriate. You know, if you steal a car versus committing a murder, they're both crimes. But one is worse than the other. Get it?

Anonymous said...

HCIC, you say have seen worse than Nifong and I am willing to accept that at face value. What doesn't ring true, however, is your repeated defense of Nifong via implying that his actions may have been inadvertent, the result of failure to attend, or some other negligence.

The FACTS are to the contrary. The facts show a deliberate and arrogant plan to frame three students. A plan in which Nifong engaged co-conspirators, including a DNA lab and a police investigator, to name a few. While you may have seen worse, it is hard to believe that Nifongs conduct is typical.

I am neither male, nor white, and I do not hesitate to say that Nifong's use of official process to meet his private need disgusts me. I promise you I would say so no matter his race or that of his victims.

Perhaps this case DOES generate high emotion because of the high publicity (which as others have pointed out Nifong brought on himself) but I disagree with your implication that if the races were changed the public would cease to be enraged. Granted that perhaps some of the commentators would change, but decent people everywhere are sickened by deliberate frames of innocent people. Indeed, I wonder if the public condemnation wouldn't be even more intense in that instance.

BTW, if grand jury proceedings weren't protected (and perhaps the protection ought to expire after a period of time) perhaps prosecutors like Nifong wouldn't be so successful in indicting the proverbial ham sandwich.

I don't know the facts of the case you cite but I can't help but think that embarking on a conspiracy to knowingly put two innocent teenagers and an innocent 21 year old in prison for 30 years and subjecting them to public humiliation for a crime they didn't commit is worse than leaking grand jury testimony. In my view, its no contest.

Still, its silly to even be making this analysis. Why do you feel it necessary to defend Nifong by parading select instances of prosecutorial misconduct that you feel is worse? To paraphrase Duke President Brodhead, isn't what Nifong did "bad enough?"

YES, I accept the point that there are other bad prosecutors. Lets go after them. Don't use them to EXCUSE Nifong. And make no mistake about it, your article drips with apology on behalf of Nifong (he was inattentive, overworked, etc.). You even insist (three times that I count) that he was disbarred "mostly" on account of "insulting" some "dudes." Now you imply that we of the comment board wouldn't care if those dudes weren't white. Sorry, but I'm calling BS.

wayne fontes said...

HCIC, Nifong gave a self serving apology after the players were declared innocent by the NC AG. This was a year after he filed the charges. Where do you get he went into apology mode pretty quickly.

Nifong did start to apologies pretty quickly after he faced the First Tough Questions in the whole affair. As a matter of fact he was crying on the stand after the first round of tough questions.

The HCIC said...

Anon, I've been clear about my biases. Otherwise, what's there to disagree with? I said I wasn't apologizing for him. If you insist that I am, that's just your bias on this issue showing itself. I am just trying to inform your opinion, which is obviously pre-formed, not change it. If you think it's BS, that's cool.

The HCIC said...

wayne, i wasn't clear. I meant that nifong went into apology mode pretty quickly after he started to suffer the consequences for his conduct, not throughout the case.

Anonymous said...

In what universe could Nifongs conduct in this case be considered less than malicious?

"Malice is a legal term referring to a party's intention to do injury to another party."

Seems to me that intentionally framing innocent students for a crime that he knew never happened qualifies.

Adrian said...

i don't think you can compre Nifong to Nancy Grace. NIfong was in the middle of a criminal case. Grace was in the middle of a show which is for entertainment purposes.

The HCIC said...

intentionally "framing"? That's not a subjective statement? He inappropriately withheld the DNA evidence. The person representing the lab concerned testified that there was no "conspiracy." Does that not matter to you? The initial lab report indicated that there was more information. The defense had an opening to follow up. Yes, Nifong should have been more forthcoming. He was wrong.

Adrian, I think its worse the way Grace and other talking heads conduct themselves. At least Nifong was doing what he did in the context of an alleged victimization. To do it just for entertainment? As a lawyer, that's just low. That's just my opinion though.

Anonymous said...

HCIC,

that Nifong knew the contents of the DNA report and that he asked Meehan to withhold it is a finding of fact in the 23 page bar report issued by the state. Knowledge and deliberate act equals intent. Taking action with knowledge of the likely result equals intent to accomplish that result.

Sadly, the statement that Nifong intended to frame is NOT subjective. This is what makes Nifong's conduct so reprehensible and why you have received no support for your position here.

On another note, I am quite sympathic to your comments elsewhere on the case against Genarlow Wilson. I think the prosecution of this young man for consensual sex with a young woman just two years his junior is over the top and I hope the issue is resolved in his favor. The same holds true regarding the other young man you profiled in an earlier column who has been sentenced to prison for 10 years for a similar "offense." I admire your attention to this issue.

On Nifong, however, your sympathy is misplaced. In the beginning, II too gave him the benefit of the doubt. I believed that he knew more than he was letting on and also that a woman was unlikely to fabricate a sexual assault.

But my trust was clearly misplaced. I admit that. Nifong is now a proven liar, and yes, his misdeeds were intentional. Read the findings of fact in the attorney general's report and the state bar.

Nifong doesn't deserve your concern, well meaning as it may be. You are not considering all the facts. Nifong certainly isn't a scapegoat or a choir boy (no matter to whom you compare him.)

Anonymous said...

P.S, Check out the findings about Nifong's insructions to the DPD to rig the line-ups so there were no "wrong answers." (pick three, pick any three.)

Check out te findings that he intentionally lied to two judges about the DNA evidence being withheld. If that wasn't enough, he ordered the arrest of a defense alibi witness.

It is just unreasonable to conclude other than that Nifong was going to indict no matter what the evidence. Manipulating evidence, ignoring and hiding other evidence--Thats the definition of a frame.

CoCo said...

I think one thing a lot of people are missing is the fact that this type of thing happens all the time. These Dukes boys were lucky enough to have the resources to defend themselves and get out of this. What about the thousands of poor Black, Hispanic and White men who are not afforded the same defense? No one is crying for them. I hate to say it, hut I have a hard time feeling sorry for 3 privileged white kids who were victims of a miscarriage of justice (to some degree) when it happens to poor people (minorities in particular) all the time.

CoCo said...

Correction; I hate to say it, BUT I have a hard time feeling sorry for 3 privileged white kids etc....

Anonymous said...

coco --

I'm sorry to hear that you are so emotionally stunted that when you find out that someone has been the victim of a deliberate frame that smeared their name around the world and nearly deprived them of their liberty for thirty years, all so a corrupt prosecutor could collect a higher pension, you don't have the natural human emotion of outrage at injustice but instead wait to find out if the victims' races are acceptable to you. Perhaps some time in the future you may outgrow such flattened affect.

Anonymous said...

HCIC --

My apologies for thinking that you meant "malicious" in the conventional sense. I had no idea that you were using it in the legal sense because to look at the findings in the case and claim that conduct was not malicious is preposterous.

Anonymous said...

HCIC should work more on a new post, rather than wasting time trying to explain away inaccuracies in the old post.

CoCo said...

Anon. Thank you for your dime store psycho analysis about my emotional growth or lack thereof. When did I say that it's okay that it happened because they were white? I did not. I said that I hate to say it, but I have a hard time feeling sorry for 3 privileged white kids who almost suffered a miscarriage of justice. It happens all of the time and it's amazing to me how outraged everyone is that it happened to these poor little Duke boys, but no one seems to care about the poor people that it's happening to daily! Please re-read my original post before you accuse me of being a simple minded racist void of human emotions. However I am impressed with your ability to characterize me even though we've not met. I will compliment you on your comments on this subject though. You made great points and you were able to back up your opinions.

Anonymous said...

Sorry, coco. You didn't say that it was okay that it happened because they were white, and I never said you said that. What you did say is that when this miscarriage of justice occurred, a miscarriage of justice at which we should all be feeling outraged at the violation of law and sorry for the victims subjected to that corrupt persecution, you found it difficult to feel those feelings because of their race. If you think that's something other than racism, well, hello, what do you think racism is? And before you go spewing BS about how "no one is crying" for defendants who are poor or black or Hispanic and who have been subjected to similar false prosecutions, you might want to stop and think for a second. Is Darryl Hunt, a black man of no particular wealth, still in jail on a false charge of murder? No, he is not. The injustice in his case was finally brought to light and he was exonerated. Who did that, elves? At least one of Darryl Hunt's attorneys that helped to get him freed and exonerated was a white man. What would you tell that white attorney? "Hey, gee, it's great that you got justice for the guy who looks like me. However, if the same thing happens to a guy who looks like you, why should I feel sorry for them?"