Out of Control - Nifong and the Duke Administration & Faculty
By mbecker908 Posted in Law — Comments (57) / Email this page » / Leave a comment »
From the diaries by Leon...
From My Way
By AARON BEARD, Dec 28, 2006 6PMRALEIGH, N.C. (AP) - The North Carolina bar filed ethics charges Thursday against the prosecutor in the Duke lacrosse case, accusing him of saying misleading or inflammatory things to the news media about the athletes under suspicion.
The punishment for ethics violations can range from admonishment to disbarment.
Read on...
[UPDATE] the full NC Bar complaint is here
Among the four rules of professional conduct that District Attorney Mike Nifong was accused of violating was a prohibition against making comments "that have a substantial likelihood of heightening public condemnation of the accused."
The charges will be heard by an independent body called the Disciplinary Hearing Commission, made up of both lawyers and non-lawyers.
In a statement, the bar said it opened a case against Nifong in March 30, a little more than two weeks after the party where a 28-year-old student at North Carolina Central University hired to perform as a stripper said she was raped.
Nifong did not immediately return a call for comment.
Another of the rules Nifong was charged with breaking forbids "dishonesty, fraud, deceit and misrepresentation." The bar said that when DNA testing failed to find any evidence a lacrosse player raped the accuser, Nifong told a reporter the players might have used a condom.
According to the bar, Nifong knew that assertion was misleading, because he had received a report from an emergency room nurse in which the accuser said her attackers did not use a condom.
Emphasis is mine.
Nifong dropped the rape charges last week when, in addition to the fact that the DNA from five different individuals that was found on the accuser didn't match ANY of the Duke lacrosse players, the accuser apparently said she couldn't say for sure if she was gang raped.
Nifong kept the sexual assault and kidnapping charges. In NC, rape only occurs when vaginal penetration occurs. The remaining sexual assault charges are apparently related to oral and anal sex that was alleged at the same time as the now dropped rape charge. Apparently Nifong thinks he can prove oral or anal sex even though he can't prove rape.
All of these charges will dropped shortly and then the three lacrosse players will only have to deal with having a felony arrest charge on their record, even though it will have not been prosecuted.
In addition to outrageous conduct from Nifong's office, the Duke Administration and Faculty owes these young men a groveling apology. The President of the University canceled their season, the coach resigned, and roughly 80 faculty members signed a letter basically convicting these young men of rape.
At the very least, their criminal records should be expunged, their parents should be reimbursed for legal fees they've incurred, and the President of the University and every faculty member who signed the letter should issue a public apology.
I'm not holding my breath.
and imprisoned.
Envisioning when all that is Left is the Right.
... to see if some nitpicker troll has commented about the need for a trial and conviction brfore imprisonment. As one of my cousins once said, I'm having a sort of "deja view" here.
A nice, long one that will totally, financially ruin his family. That is part of the "process". Looks like all the other nitpicker trolls deferred to you.
Envisioning when all that is Left is the Right.
The players in question should promptly file suit for wrongful prosecution in the matter against Mr. Nifong personally and take him for everything he's got.
They should also sue the 80 or so professors for defamation of character.
At the very least, make the people who took cheap shots at these kids pay the bills for lawyers to save their sorry selves.
Is there any recrouse the Duke players can extract out of Nifong? Can they sue him?
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"As nations can not be rewarded or punished in the next world they must be in this."
- George Mason
I am not a lawyer. But I did stay at a Holiday Inn Express. :p
The wiki has an article on malicious prosecution. Assuming the information is accurate, than Nifong is more or less personally immune. The city of Durham is not. So any civil suit brought by the real victims(the Duke students) would need to be aimed at the local government.
There would be an interesting issue of whether Nifong would be entitled to immunity for his conduct. The rules regarding absolute and qualfied immunity are always changing, and if, as seems the case, Nifong persisted with this prosecution when he knew it to be wrong, then there would be a definite argument on the issue.
Durham would certainly seek to hold Nifong personally responsible for any damages assessed against the municipality.
And I would say that even if no personal liability is found, should the city be found monetarily liable, I would imagine it would be enough to remove Nifong from office.
As it is, this prosecution has now compromised Nifong as a prosecutor - every charge he brings will now be scrutinized, and every defense lawyer in Durham will be trying to cast suspicion on the motives for the prosecution of their client.
A legal question.
Not being either a lawyer or a resident of Durham, I'm not even close to knowledgable, but based on heresay from TV talkingheads, there is no jursidiction anywhere in the country where the DA doesn't have absolute immunity.
I'm sure a NC lawyer would be better positioned to answer.
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If "pro" is the opposite of "con", what is the opposite of "progress"?
In November, South Dakota voters voted 89-11 against a state constitutional amendment that would have allowed personal prosecution of state officials for offenses committed in their public capacity.
The fact is that cases of such blatant malfeasance are actually pretty rare, and making the DA vulnerable to this kind of suit would be a disaster. Can you imagine the effect on the criminal justice system if DA's had the spectre of a financially ruinous lawsuit hanging over them when they made the decision to prosecute?
Personally, I think the voters of Durham, the ones who re-elected this grandstanding idiot, SHOULD be the ones to pay.
BTW, in that SoDak vote, 89-11 result isn't a percentage, it's it's the actual vote count - there's not a lot of people left in SoDak, I'm afraid.
if Nifong doesn't get disbarred, he gets reelected.
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If "pro" is the opposite of "con", what is the opposite of "progress"?
Gamecock, DeVine Op-Ed for Charlotte Observer, blogs at Race 4 2008
BTW, in that SoDak vote, 89-11 result isn't a percentage, it's it's the actual vote count - there's not a lot of people left in SoDak, I'm afraid.
Too cruel!
And, as noted, that's the way it should be. You don't want courts second guessing every decision to go to trial made by prosecutors. The cure would, in the long run, be worse than the disease, and altogether too favorable to the criminal class.
based on malicious prosecution? gammecock seems to think that civil suits are pretty much impossible too.
Is there any mechanism, assuming the remaining charges are dropped, for these guys to get their records expunged?
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If "pro" is the opposite of "con", what is the opposite of "progress"?
I think a state law based malicious prosecution claim is dead in the water.
If I were charged with coming up with a way to sue him, my first response would be tell the potential client to save their money. If they insisted that I look into it, I wouldn't focus on the actual filing of charges. I would look at all the other sleazy stuff Nifong did - sensationalizing the case with an improper press conference in which he made statements way beyond the evidence, refusing to hand over exculpatory evidence, intimidating witnesses. I would try to find a way to make those actions sufficiently separate from his official duties that they could be portrayed as more like a car accident on the way to the office (which wouldn't be covered by any immunity) than like a claim based on his official duties. I honestly don't think it would fly, but that's where I would go looking.
There's also the potential for a civil rights claim based on federal law. I haven't had anything to do with any of those since I was clerking, but my hazy, senile recollection is that they are very hard to make out, and that there are significant barriers to collecting money from a public entity or a public official. Someone more in the flow than I could give more insights into whether that would fly, but, again, my first advice would be not to waste money or time on it.
As for expunging the record, I don't know. That's going to be an issue of North Carolina statutory law, and I have no idea under what circumstances North Carolina allows such charges to be expunged from the record. As a practical matter, expungement or not, given the publicity this case has had, these guys will never get completely away from this, since wherever they go someone will remember that they were one of the three notorious Duke lacrosse rape defendants. There will be some pinheads out there who will forever believe them guilty, no matter what the facts are. That's part of the tragedy here.
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If "pro" is the opposite of "con", what is the opposite of "progress"?
prosecutors and judges, and even most government officials generally from civil immunity for carrying out their duties. If they act outside the scope of their authority, all bets are off, but in the Duke case, this exception does not apply. Nifong is prosecuting a case. He can be punished by the Bar for negligence or worse in the carrying out of his duties, as can judges and other govt officials.
Gamecock, DeVine Op-Ed for Charlotte Observer, blogs at Race 4 2008
who could have exposure to liability? City of Durham?
Is there any way, assuming the remaining charges are dropped, the players can have their records expunged?
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If "pro" is the opposite of "con", what is the opposite of "progress"?
EXCEPT) one could sue the accuser after acquital for malicious prosecution, but the burden of proof is so heavy and the court's prejudice against same so great (it would probably be dismissed on summary judgment before trial) that it would be foolhardy to pursue it. I know. I have pursued one to a state sup ct!
Why? Because courts want finality absent pre-meditated fraud. Otherwise, no case would end. The winners of cases would sue the losers' witnesses, etc in an endless litigation spree.
Gamecock, DeVine Op-Ed for Charlotte Observer, blogs at Race 4 2008
with NC's law, but I've read and negotiated lots of public employee and officer legal indemnification language. In most jurisdictions a public employee or officer enjoys "qualified immunity" for any action or inaction in the course and scope of their duties. So, to get him to bar, you'd have to prove he knew the men were innocent and proceeded against them in spite of that knowledge. That would be a tough burden; any prosecutor takes cases where he or she might not be convinced but if there is evidence of the elements of the charged conduct, it goes to the jury or other trier of fact. The only hook I can see is if NC has a public officers' ethics law that prohibits the use of the office for personal gain, one could posit that despite the fragility of the evidence, he withheld or didn't gather evidence so that he could personally benefit in the election. In other words, it wasn't just bad judgement, which you would get a pass on because of immunity laws, but rather was a willful judgement for personal gain. That might get around the very high burden in proving prosecutorial misconduct sufficient to overcome his qualified immunity.
In Vino Veritas
the necessity for finality in litigation is great. I've been to two state supreme courts on this issue and will never entertain a malicious prosecution suit again!
Gamecock, DeVine Op-Ed for Charlotte Observer, blogs at Race 4 2008
There's no doubt that Nifong should be punished severely, and the players do deserve an apology from the Duke faculty for prejudging their guilt.
However, the cancellation of the season and dismissal of the lacrosse coach was not wrong, in my opinion. Even if no rape occurred, a team-sanctioned stripper party at a school-owned house is a serious disciplinary offense. It was also not the first disciplinary incident for many of the players involved. Much like Miami has incurred a rash of disciplinary problems in trying to continue its greatness on the football field by attracting star players with less-than-stellar disciplinary histories, Duke has tried to build on its image as a "Southern Ivy" by building up its lacrosse program. Unfortunately, it has done so by adding some disciplinary basket cases to the team.
I greatly sympathize with these players for the legal hell they have endured under a prosecutor clearly using their case for political capital. However, we should not ignore the misdeeds that they unquestionably have done.
how is a stripper at a team party "a serious disciplinary offense?" Or even a disciplinary offense or even a concern of the school for that matter?
Schools stopped acting in loco parentis since at least the advent of co-ed dorms and the idea that universities are supposed to produce gentlemen has been dead for 40 years. So I don't see how a stripper, a legal occupation mind you, entertaining at a team party is an issue at all.
Most collegiate teams have rules that govern behavior and sanction things like this. However, I seriously doubt that the school would have taken any disciplinary action had there been no crime accusations.
why wasn't that made clear at some point MONTHS ago. Your explanation is an "easy out" for the administration and likely could have allowed them to expel some or all of the players. Yet not a word about breaking team or college rules.
Sorry, unless you can come up with a link that one doesn't pass the smell test.
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If "pro" is the opposite of "con", what is the opposite of "progress"?
rather, I was trying to point out that collegiate teams and Universities often have these "rules" in place that are often ignored unless a player's bad actions become public. These rules then give them the authority to expel students, fire coaches, etc and make themselves look like they were just enforcing a set of rules.
My point is that if they had such "rules" they haven't used them.
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If "pro" is the opposite of "con", what is the opposite of "progress"?
with a full blown case of self righteousness. Didn't get accepted or make the team, huh?
Envisioning when all that is Left is the Right.
"Even if no rape occurred, a team-sanctioned stripper party at a school-owned house is a serious disciplinary offense."
I don't know how anyone can contend that's appropriate.
First, the party was not on campus and not on university property it was at the residence of one of the team members.
Second, the activity they engaged in is legal in all states and territories as far as I can tell.
Third, consenting adults and all that.
Fourth, it was a closed team party so it wasn't like they were inviting the general public to a party which could be associated with Duke or the lacrosse team.
Fourth, I don't have an objection to strippers so long as they are aesthetically pleasing, I haven't seen her photos so maybe she violated this principle.
Fifth, I don't have an objection to strippers entertaining at a party.
Sixth, I missed the part where you got elected Pope and were able to determine what is "appropriate" for everyone else.
... to a higher standard.
First, I believe that the house at which the party occurred was a school-owned house, and that the players who owned the house paid rent to the school.
Second, the legality of the activity is not in question. Most private schools have codes of conduct -- as do their athletic teams -- that effectively bar this sort of activity on or off campus.
Third, you're absolutely correct regarding consenting adults.
Fourth, that's a pretty damn good comment, and I have no response.
Fifth, ditto.
Sixth, I'm not trying to play the role of pope or judge anyone for what they did, and perhaps my initial comments came across as too harsh. However, I have no doubt that there was ample justification for Duke suspending the lacrosse season. Was there justification for the extra comments pre-judging the guilt of the accused? Absolutely not. But I am betting that there is a code of conduct for Duke athletes that states their public status equates to a higher standard of public conduct. It is clear that the Duke lacrosse coach in this instance had lost disciplinary control over the team, and the president felt compelled to do something. I have no qualms about athletes having fun off the field, but there are many cases in which athletes have been charged with crimes (carrying a gun, getting into a fight, etc.), those charges being dropped, and the player still getting kicked off the team because the circumstances surrounding the charges are inherently inappropriate. That is the case here, and I have no problem with the team losing its season.
that you haven't been at very many schools or been around very many college athletes if you think they are held to a "higher standard." Many people think they should be, for reasons unknown to me, but the fact is that they aren't and never have been.
I guess we're just going to disagree on whether or not a team party involving strippers is such a heinous act that the team loose its season or the coach should loose his job.
Newspaper accounts say that the house was "bought" by Duke in February. The event happened on March 13. I don't know what bought meant, whether that means a contract was signed for the purchase or whether the deal went to closing. So I may be wrong or I may not.
Yeah right. You've been living in a cave for the last few years. College athletes are given a pass on everything short of violent felonies - and sometimes even then. Your contention is silly on it's face. With respect to your comments about #6, in this case the University sanctioned the athletes and the team with absolutely no investigation of fact. Nifong leveled charges, got a grand jury to indict his ham sandwich (and it appears he likely withheld evidence from the GJ) and the University took action. Where's the due process?
With respect to the idea that they violated some team or school rule, why hasn't the University clearly stated that was the case. As I noted upthread, that's an "easy out" for them, yet they're silent on the subject.
With respect to renting an house owned by the University, they paid the rent. I'm guessing (not be a NC real estate lawyer) that the landlord will have a really, really hard time enforcing any kind of a "code of conduct" on a renter where felonies are not committed. None were, with respect to having the party.
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If "pro" is the opposite of "con", what is the opposite of "progress"?
It's a modern-day witch hunt and Nifong is not the only one. This case just generated a lot of publicity. Some state laws are so bad, that anyone merely accused of a sex crime is presumed guilty and must prove his innocence; forget about reasonable doubt.
In some states, one can be prosecuted with the testimony of the victim as the ONLY evidence. This is especially true in cases involving children. Just google "false accusations".
DNA evidence is not always available, but when it is, it's just as powerful a tool for the defense as it is for the prosecution. For some reason, the prosecution is always reluctant to give up the DNA if it means they have no case. Obviously, they are only interested in winning convictions, not delivering justice.
Thanks to DNA science, people are now being exonerated after spending 7, 10, 20+ years in prison for crimes they didn't commit. Just see www.innocenceproject.org for some examples.
for DAs and AG's gone bad. And, unfortunately, there's too much political reward for over-zealous prosecution. I'm not an attorney, but I recall being taught that the prosecutor's role in a trial is to "reveal the truth." Yet most seem more interested in winning at all cost. And they're rewarded for it. Nifong joins a long list of overzealous prosecuters who've done well: Spitzer, Reno, Harshbarger, and more.
As a duke alumnus who is disgusted with the actions of his alma mater, I appreciate all you've written here.
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"Tradition is the democracy of the dead. It refuses to submit to that arrogant oligarchy who merely happen to be walking around"
-G.K. Chesterton
Or do you still have any local contacts?
Frankly, at this point I'm more ticked off at the Duke faculty and administration than at Nifong. Only because I think Nifong will eventually be made to pay. (Hope springs eternal.)
OTOH, I have no expectation that anything will happen to faculty who signed that letter and have convicted the players without bothering with a trial.
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If "pro" is the opposite of "con", what is the opposite of "progress"?
I have not. There was a time when I thought that Duke was different from similar institutions that seem so beholden to leftists and P.C. language. With this situation, the administration and faculty have disabused me of that notion.
Luckily, I have still have my grad school to contribute to.
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"Tradition is the democracy of the dead. It refuses to submit to that arrogant oligarchy who merely happen to be walking around"
-G.K. Chesterton
I wasn't trying to be snarky (I usually don't have to try). I was actually hoping you had "boots on the ground" so we could get a local update. All I see is the national stuff and a couple of NC blogs and I thought it would be interesting to get more of a first person take on the situation.
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If "pro" is the opposite of "con", what is the opposite of "progress"?
as snark. In terms of boots on the ground, I'm too old and too fat to know anyone on campus. But the journey's been full of good food and drink ;)
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"Tradition is the democracy of the dead. It refuses to submit to that arrogant oligarchy who merely happen to be walking around"
-G.K. Chesterton
kidnapping?
What are the chances of a civil rights conspiracy investigation against the DA and the cops?
What can be the recourse against the lab?
The Duke president, Broadhead, is a typical university prez - a gutless, fear driven puppet-tool of extreme leftists, protecting the huge pool of money every large univeristy is allowed to keep with nearly 0 oversight.
I wonder just how typical the DA is?
I am thinking maybe not at all.
DA's and prosecutors are incredibly powerful people, authorized to bring the power of the state to bear on whomever they wish, with nearly 0 oversight.
that prosecutors add to the "charge stack". The plain English translation of the charge is that you impede another person's ability to leave an area and they feel threatened. If you are standing in a doorway and will not move, an individual in the room can theoretically charge you with kidnapping. 99% of all kidnapping charges do not involve weapons, duct tape or automobile trunks. If the stripper felt like she could not leave the house Nifong could charge kidnapping.
It is a popular charge with prosecutors because it usually carries a "life sentence". The drill is "we'll drop the kidnapping charge if you plead to this other Class C felony and take 3 to 5. If you go to trial, we'll get the max and you'll never see the light of day again."
There is no chance of a conspiracy charge with the cops. Nifong took over the investigation from them before the primary, they are just as duped as everybody else.
The problem in general - NOT THIS CASE - but in general, is the "criminal justice system". It has not much at all to do with justice, rather it is a procedure used to process people. By and large everybody is on the same side. The DA's job is to review the case and come up with a plea agreement the perp will accept. The defense attorney, 95% of the time a court appointed attorney, is to cut the best deal he can get for his client. Everybody's job is to put the defendant away. Most of the time, he's guilty. All of the time nobody wants the case to go to trial - the DA doesn't have the manpower to try cases and the state won't pay to provide adequate trial defense for defendants.
The thing that makes this case unique is the very real appearance that the lacrosse players are actually innocent (as opposed to "not guilty") and the very real FACT that they could afford high quality private counsel. I can pretty well guess that their combined legal bill, assuming the other two charges get dropped, will be well over $1,000,000. If those other two charges go to trial it will approach $2,000,000.
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If "pro" is the opposite of "con", what is the opposite of "progress"?
...are too busy worrying about things like abortion-on-demand, the Pledge of Allegiance, and whether or not a valedictorian can thank God in his/her speech. Imagine if we could direct that energy into improving the criminal "justice" system.
Er, "Group of 88" for those of you who missed this aspect of the story, you can read more about it at the link above.
After all, in one respect, the statement represented a not uncommon event on campus: race/class/gender professors wielding their collective muscle, with little or no public opposition from professors who fear being branded as insensitive to the contemporary academy's Trinity.
People should note in particular the composition of the group faculty members who signed that letter to Brodhead. Out of the 88 professors, visiting professors, or clinical nurses (!) who signed it, only 3 were math or hard-sciences professors. You can read about the rest of them, but the group is basically akin to the gang of leftist losers who successfully kicked Lawrence Summers out of Harvard University for daring to assert in a closed meeting that researchers should do more research. And there wasn't a single law professor on the list, which in hindsight was very smart. However, this person signed it. And so did this one. And this one.
You can also read the full text of the "Listening Statement" published on April 6, 2006 on this blog (scroll down). Keep in mind that their basic premise was that regardless of the outcome of the police investigation, this case was purported to be watershed moment in Duke University History, presumably because with enough publicity the signatories would be able to pressure the Duke Administration for additional funding and faculty -- regardless of whether or not anyone was guilty. Here's the "acknowledgement" graf from the end of the statement:
We thank the following departments and programs for signing onto this ad with African & African American Studies: Romance Studies; Psychology: Social and Health Sciences; Franklin Humanities Institute; Critical U.S. Studies; Art, Art History, and Visual Studies; Classical Studies; Asian & African Languages and Literature; Women’s Studies; Latino/a Studies; Latin American and Caribbean Studies; Medieval and Renaissance Studies; European Studies; Program in Education; and the Center for Documentary Studies. Because of space limitations, the names of individual faculty and staff who signed on in support may be read at the AAAS website: http://www.duke.edu/web/africanameric/
Three students were falsely accused of rape and 80 faculty members signed a petition that basically constituted the equivalent of a compurgation against them. Now the charges have been dropped due to insufficient evidence.
This suggests, ever so subtly, that the 80 faculty members went out of their way to prejudice a case about which they knew Jack. So what has the illustrious Duke University BOV had to say thus far? Are those crickets I hear chirping in the background?
2006 is done, 2008 is another day and another fight
Is the behavior of the 'civil rights' crowd. These guys have long complained, sometimes correctly, about prosecutors and DA's zealously pursuing folks based on the color of their skin regardless of the actual evidence against them. Yet here is a textbook case of that happening, and the same folks are gleefully on the side of the prosecutors.
Cheers,
Scott in Indy
To that crowd, racism is OK as long as the racism is directed at white males. It shouldn't surprise you that the "civil rights" groups are not decrying an obviously racially motivated prosecution in this case. My guess is that they feel that trumped up charges against white males is redressing past wrongs against black males.
Socialism doesn't work. It looks nice on paper, but it's been tried and it's failed miserably every time (usually accompanied by widespread death and suffering).
Proud member of the V.R.W.C.
and the newsfolk interviewed some of their students. On fellow noted (and I'll go see if I can find it on YouTube) that the three players should be convicted and sent to prison even if they didn't do it. Because it would be the fair thing to do since they're rich and white and the stripper is black.
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If "pro" is the opposite of "con", what is the opposite of "progress"?
1. Their parents could afford good representation.
2. George Bush wasn't a lacrosse player.
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If "pro" is the opposite of "con", what is the opposite of "progress"?
this action is overall, as against a prosecutor, and esp when the case has not gone to trial. This is really man bites dog sory!, and while I suspect that the NC Bar's actions are appropriate, and I certainly have great sympathy for the accussed as a human being and a criminal defense lawyer writ large for 14 years, being smeared without actually being convicted esp while the accuser remains anonymous, and given that I have written extensively about the problems with this case, the Kobe Bryant case and rape prosecutions in general, I am troubled to see this happen before the case goes to trial. I suspect the dropping of ther rape charges after so long coupled with the admission of not having spoken to the accuser is what prompts it and makes it appropriate.
see below for my previous takes re prosecutorial misconduct
from April 2006
http://www.redstate.com/story/2006/4/21/12822/5509
Gamecock, DeVine Op-Ed for Charlotte Observer, blogs at Race 4 2008
"One man with courage makes a majority." - Andrew Jackson
http://theminorityreportblog.blogspot.com/
This whole thing has been a travesty, and illustrates how badly justice can go awry when the enormous power of the state is placed in the hands of a man who puts his own short term political goals ahead of justice.