Friday, March 23, 2007

The Dog Ate My Legal Obligations

This is the best reading I've done all day. It's the North Carolina State Bar's rejection of Mike Nifong's motion to dismiss the ethics charges filed against him by the Bar for actions during the course of his prosecution of the Duke Rape Case.

OK, right, it's a legal document and therefore necessarily dry and jargony. All the same, the sarcasm shines through as the Bar hacks Nifong's feeble arguments to pulp.


  1. The US Constitution isn't what's at issue - Most of Nifong's motion to dismiss apparently rests on the idea the Bar can't prove he violated the Constitution. The Bar notes, however, that that's not exactly what he's charged with. In fact, independent of whether the Constitution requires him to provide the Defense with any potentially exculpatory evidence it requests in a timely manner (which, by the way, it does - see below), the North Carolina Bar does. It's 3.4(d) and 3.8(d) of the Rules of Professional Conduct, and as a public prosecutor Nifong is bound by them whether or not the US Constitution also requires the same behavior.

    Thus, the viability of the claimed rule violations in paragraph(c) and paragraph (d)(ii) are wholly independent of the Plaintiff's additional allegations that Nifong's conduct also violated the US Constitution... (p.6)

  2. Even so, Nifong violated the Constitution - Nifong cites United States v. Agurs(427 US 97) in his defense here, apparently hoping the Bar isn't that familiar with it. Unfortuantely for him, they've read it more closely than he has. Nifong is correct that that case was essentially decided in favor of the state (the gist is that if a prosecutor witholds some evidence, whether by error or intention, it isn't necessarily a violation unless the evidence would have cast doubt on the Defendant's guilt. The point was to free Prosecutors from the responsibility of having to second-guess for every bit of evidence what clever use the Defense lawyers might have been able to put it to. Only the "obvious" stuff is required to be turned over). However, the ruling is, as it turns out, more specific than he characterizes about what has to be turned over. It isn't just "the relevant facts," as he tries to argue, but also anything specifically requested by the Defense. And indeed, the Defense specifically requested his report of all the DNA evidence, which he more than once failed to provide.

    The Duke Defendants made repeated, specific requests to Nifong for poetntially exculpatory information, so under the Argurs analysis, his conduct falls into the "seldom, if ever, excusable" category.

  3. 1,884 pages of raw data is not a "report" - At some point, Nifong did eventually (under order over objection) get around to providing the Defense with the evidence it requested, but he didn't provide a reported summary of it. Rather, he just handed over the 1,884 pages of incomprehensible raw DNA data - obviously something that needs expert interpretation. More than that, raw data gives no indication of how the state intends to actually use the information. The Bar is appropriately snide:

    Whether or not one is willing to characterize the 1,884 pages of data as a "report," which it is not, the allegations of the Amended Complaint show that Nifong did not provide the subjects of NTO with a report of all tests "as soon as the reports are available..."

  4. Nifong's "there was no trial date" defense doesn't work - Nifong repeatedly argues that as there was no trial date set, he wasn't required to turn over all evidence requested. The Bar appropriately makes hash of this - not only noting that the rules say nothing about a trial date, but also that the fact that Nifong never provided all the requested materials renders this argument pretty much moot anyway.

    Accordingly, the State Bar's allegation that Nifong never provided a memorialization of Dr. Meehan's statements to the Duke Defendants is sufficient to support a violation of Rule 3.8(d) regardless of whether or not a trial date had been scheduled.

  5. Nifong's "no court ordered me" defense is completely absurd - Part of Nifong's motion is that the fact that the Court never specifically ordered him to turn over memos of his conversations with Dr. Meehan means that the Court was satisfied that he was compliant with the statutes. In fact, as the Bar notes, that was because Nifong had lied to the Court about the materials requested.

    Therefore, Nifong is effectively arguing that he can make false statements to a court which result in the entry of an order, and then use the order that is based on his misrepresentations to claim he committed no discovery violation.

    And again later:

    In his motion, Nifong now seeks to have a claim that he violated the Rules of Professional Conduct dismissed on the grounds that his successful deception of the Court resulted in a Court Order which did not specifically require him to provide memorializations of Dr. Meehan's statements.

Beautiful! Nifong may well be going to jail over this - and I, for one, sincerely hope he does. Unless something comes out at his trial that we just haven't been told, the case against him for prosecutorial misconduct seems airtight. But even so - even if he isn't formally charged with anything criminal - it's pretty clear that the North Carolina State Bar has had enough of him. He'll be disbarred, a fate he not only richly deserves, but more importantly an action that will protect innocent citizens of North Carolina from any future political crusades and election whoring he might have been tempted to engage in.

One thing that still bugs me about this: Mike Easley is still off the hook and I don't know why. Easley appointed Nifong and now implausibly claims that Nifong had promised him not to run for election. If that were the case, regardless of the circumstances of the Duke Rape Case - Easley had the option of yanking Nifong from office as soon as he announced his candidacy. Maybe he felt it would have been pointless given the fact that the governor can't prevent a sitting appointee from seeking popular election. However, it would have saved everyone a lot of trouble to have yanked Nifong way back when. Easley, in short, isn't taking responsibility for his obviously crappy appointment. But then, he's a politician, so I guess no one expects him to.

[UPDATE: Apparently I am wrong about Easley's ability to remove a sitting prosecutor, even if it's one of his appointees. It seems Easley was just (surprise, surprise) catering to his audience when he said the things that gave the impression such an action were within his authority. See the comments section for an informative link on the matter. Thanks to commenter KBP for the correction.]


At 9:34 PM, Anonymous Anonymous said...

The state would STILL like to get convictions, rather than face the fallout from dismissal.

It's sad, but apparently in NC innocence may not be enough to get the charges dropped. ("Some cases are so important that innocence cannot be allowed to be a defense.")

But "light is the best disinfectant." Help keep the public spotlight focused squarely on Durham :

Petition for Justice in the Duke Lacrosse case :

At 8:38 AM, Blogger Joshua said...

I've signed it - thanks for the pointer.

At 10:11 AM, Anonymous Anonymous said...

Thanks, I enjoyed your post here!

On the "Easley had the option of yanking Nifong from office as soon as he announced his candidacy", I have not seen anything that actually gives him the authority to do that.

At 10:39 AM, Blogger Joshua said...

There's a link in my post to an article in the N&O that quotes Easley claiming he considered yanking Nifong. I concluded from that that he had the legal authority to do so. I admit I don't know the legal code well enough to say for sure.

I've repasted the link here. Glad you enjoyed the post!

At 3:48 PM, Anonymous Anonymous said...


They're trying to enact a law that would allow it in the future.

I had read his claim that he was considering dumping Nifong for deciding to run for office, but we can't forget Easley is a politician.

I believe the first time he said it was in a visit to New York. Maybe he was feeling it out in another state before he tried it in his home state!

Again, I loved your summary of the bar's response to poor Mikey!


At 6:04 AM, Anonymous Anonymous said...

(sorry, not sure of the URL Tag here)

Be wary of bill to suspend DAs
The Herald-Sun
Mar 27, 2007

The Duke lacrosse case continues to reverberate across the nation, with even presidential candidate Barack Obama making headlines by saying he would support a federal investigation into the actions of Durham District Attorney Mike Nifong.

More than a year after the incident, the case is also making a stir in the North Carolina State Legislature, where a bill is up for consideration that would give the governor authority to suspend wayward district attorneys...

At 7:37 AM, Blogger Joshua said...

Thanks for this. The URL worked when I tried it.

I have updated the main post.

At 10:24 PM, Anonymous Anonymous said...

Please understand any negative comments were actually directed at Easley - a politician, a liar and one responsible for dragging this case out for 73 extra days now!

Hope to see more posts from you on the Duke case.

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