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Sunday, March 16, 2008

Brotherhood of the Rogue Prosecutors: Eliot Spitzer and Mike Nifong

Two rogue prosecutors: Eliot Spitzer and Mike Nifong have both seen their careers destroyed within the last twelve months. Both men shared a number of similarities and character flaws.

The prostitution scandal and resulting resignation of NY Governor Eliot Spitzer has started a re-examination of Spitzer's opportunistic legal assault on Wall Street, while he was NY State Attorney General from 1999 to 2006. Spitzer used his jurisdiction over Wall Street combined with New York's vague Martin Act of 1921 (with subpoena power) to prosecute civil actions against corporations and criminal prosecutions against their officers. The victims and survivors of Spitzer's prosecutorial "reign of terror" are now having their stories evaluated in a new light.

Meantime, former Durham District Attorney Mike Nifong sits at home in Durham. He is in retirement following his disbarment and removal from office last year for his misconduct in the Duke lacrosse case.

Nifong was officially declared a rogue prosecutor by the NC Attorney General, Roy Cooper, in April 2007. The media's review of Eliot Spitzer's career as NY Attorney General is providing fresh evidence that he was also a rogue prosecutor.

Here are sixteen things that Eliot Spitzer and Mike Nifong had in common:

1. Prosecutorial Misconduct

Mike Nifong's misconduct in prosecuting the Duke lacrosse case is well documented. Many blogs (including this one) and several books have covered the sad sage of the worst case prosecutorial misconduct in recent American history. The verb 'to nifong' someone has became a synonym for 'to frame' with the intent of trumping up criminal charges based on flimsy evidence allegedly for political purposes.

The pent-up fear and loathing by the financial community of the self-appointed "Sheriff of Wall Street" has now been released. Until his fall, Spitzer's targets on Wall Street still had to fear a man with great power, who would wanted to crush and 'steamroller' his adversaries.

The Wall Street Journal described Spitzer's misconduct this way:

Mr. Spitzer's main offense as a prosecutor is that he violated the basic rules of fairness and due process: Innocent until proven guilty; the right to your day in court. The Spitzer method was to target public companies and officials, leak allegations and out-of-context emails to a compliant press, watch the stock price fall, threaten a corporate indictment (a death sentence), and then move in for a quick settlement kill. There was rarely a trial, fair or unfair, involved.
The Plumb Bob blog added:
Spitzer’s main tools were the press and a horrible law called the Martin Act. The Martin Act, a New York statute from the New Deal days, basically makes it a crime to mislead anybody for any reason. It doesn’t matter, under the Martin Act, whether you actually intended to mislead, whether any transaction was consummated, whether anybody was hurt; the simple act of misleading, deliberately or accidentally, constitutes a crime. Furthermore, the Martin Act provides the means by which the state may obtain any private communication it chooses. It had existed on the books since the 30s mostly by gentleman’s agreement of attorneys general not to use it, except against the occasional Ponzi scheme. In Spitzer’s hands, it became a blackmail tool, with which the Attorney General could threaten, as he famously did once, to arrest a corporate CEO “in front of his daughter and his pregnant wife,” for acts that may have produced no harm at all.
One example of Spitzer's misconduct was the case of Theodore C. Sihpol III. The NY Times wrote this in 2005 after Mr. Siphol was acquitted: "Maybe Spitzer's Cape Was Too Big."
FOR the past several years, the knee-jerk response on Wall Street to even the most preliminary inquiry by Eliot Spitzer has been the same: "O.K., I'll take a plea deal" or "Can we work out a settlement?" The specter of Mr. Spitzer's wrath has made Masters of the Universe cower in a corner and sweat through their bespoke suits.

That is why it's so remarkable that Theodore C. Sihpol III, a former broker at Bank of America, had the guts to stand up and defend himself when Mr. Spitzer, the New York attorney general, came calling with a list of criminal charges that accused him of making improper trades in mutual funds. If Mr. Sihpol had been convicted, he could have faced up to 30 years in prison.

Last Thursday, he was acquitted on 29 counts of larceny, falsifying business records and other crimes. A New York State Supreme Court jury was deadlocked on four other counts, and Justice James A. Yates declared a mistrial on those. The jury was split 11 to 1 - with all but one juror prepared to acquit Mr. Sihpol of all charges. The lone juror told reporters that she was convinced of Mr. Sihpol's guilt because she just could not believe the government would bring a case if there wasn't something to it. [...]
Sihpol was one of the few people to stand up to Spitzer and not bow to his strong-arm tactics. He ended up being exonerated.

The definitive book about Spitzer's prosecutorial misconduct is still to be written. However, a glimpse of Spitzer's rogue style is covered in the Charlie Gasparino book about former NY Stock Exchange Chairman Dick Grasso, a Spitzer target, entitled King of the Club: Richard Grasso and the Survival of the New York Stock Exchange.
[Gasparino's book] suggests that politics also played a prominent part in the Grasso affair, noting that Spitzer deliberately refrained from going after fellow Democrat Carl McCall [New York State Comptroller, NYSE Board member, and Spitzer supporter]. Spitzer's top investigator comes across as a ferocious bulldog. In the course of trying to make a case against Grasso, the investigator intimates that Grasso was having an affair with a member of his staff. But that was a sleazy dead-end that goes nowhere.
2. Prosecuting the 'privileged' and pandering for political advantage.

Both Spitzer and Nifong sought to advance their political careers by attacking and prosecuting people perceived as privileged. They framed their prosecutions of these privileged villains in a way to pander to their constituents.

Nifong went after a team of 'privileged' lacrosse players for perpetrating a brutal racial motivated gang rape, despite the fact there was never any evidence. Nifong indicted three 'rich' white lacrosse players from the North to bolster his sagging re-election campaign in predominantly black Durham. He then stoked the racial charged case with numerous public statements setting himself and his poor black Durham constituents against rich powerful white hooligans from the North.

Spitzer attacked rich Wall Street executives like Dick Grasso, former head of tne NYSE, Hank Greenburg, former Chairman and CEO of AIG, and Kenneth Langone, former head of Home Depot.

US News described Spitzer's pandering for political advantage as follows:
His press conferences were often the best show in town. On Dec. 20, 2002, for instance, Eliot Spitzer, then New York attorney general, took the podium at the New York Stock Exchange to announce his intention to protect the small investor, "Joe Smith in Utica" and "Jane Smith in Topeka." "The one thing they deserve," he thundered, "is honest advice and fair dealing."

Defending the little guy is stock political theater, but Spitzer's genius was the ability to transform arcane transgressions into stark morality plays with villains, victims, and plenty of drama. And the leading man administering justice was Spitzer himself.

3. Slandering the 'privileged' people that they prosecuted.

Nifong's prejudicial pre-trial statements against the lacrosse players in the Duke case were an important element in his disbarment hearing.

Eliot Spitzer got away with a more subtle slander campaign against Dick Grasso (see #1, #9). He also damaged the reputation of NYSE board member Ken Langone and others. After Spitzer's prostitute revelation, Langone said he should resign:
Because he's a hypocrite. He destroyed reputation of people who had good reputations and deserved reputations. He talked today about his standards. But what he didn't talk about was the standards that he held everybody else to that he couldn't keep. So how do I feel? I certainly feel sorry for his daughters, very much so. I don't know his wife, but I have to assume she has some idea of this happening. For him? It couldn't be enough to please me. What he's done to people, not me, I'm standing, thank God, but the number of people that he besmirched, the number of people whose reputation were earned that he soiled is horrible. . .

We all have our own private hells. I hope his private hell is hotter than anybody else's.
4. Tyrants and bullies

Spitzer and Nifong both shared a history of bullying the people they prosecuted. They both used the power of the prosecutor's office to intimidate defendants into accepting plea deals rather than go to court.

Nifong worked on a smaller stage than Spitzer - Durham traffic court. But during his years as the Durham traffic court czar he intimidated defense attorneys and ran a petty fiefdom.

One profile from 2005 of AG Eliot Spitzer referred to him as the Ayatollah General, and said:
... what value judgments does Spitzer bring to bear when "getting to answers"? In the case of business, he seems to begin with the moral principle that self-interested behavior, such as moneymaking, is at best a merely practical activity, and if not constrained by noblesse oblige a positively malign one. Like two New York governors before him, Theodore and Franklin Roosevelt, Spitzer therefore wages war against the self-seeking, moneymaking bourgeoisie in the name of the little guy. All he asks in return is ever more power to do so. [...]

He [Spitzer] has created an image for himself as America's chief anti-capitalist inquisitor, not because he has thrown a lot of businessmen in jail—he very notably has not. Rather, his image is based on his outraged insistence that businessmen have fallen below the standards of his own compassionate morality and must immediately start living up to them. When lawyers for Wall Street banks were negotiating with his office, Spitzer "lit into them. '[He] was harsh, irate, yelling at times,' one of the lawyers told Time. Spitzer said he was fed up with their haggling, that they should be ashamed of what they had done to investors." Brown describes Spitzer's office this way: "Eliot has smart people thinking, in a predatory way, Where can we do good?" Yes, predatory.
Nifong was a petty tyrant. Spitzer was a Noblesse oblige one.

5. Arrogant

Yes, of course.

6. Demagogues

Nifong appealed to the Black voters of Durham, NC, with impassioned racial rhetoric about rich white hooligans from the North attacking a poor black, single mother student.

Spitzer appealed to lower and middle class voters with impassioned rhetoric about greedy Wall Street taking advantage of the little people.

7. Braggarts

Nifong was certainly full of himself. At a party, after he won re-election to office in November 2006, a supporter approached and offered Nifong congratulations, "I just wanted to be the first to congratulate you," the man said.

"You aren't," Nifong said. "Most people went ahead and congratulated me yesterday." Nifong had won with 49.5% of the vote in a contentious three-way race.

As a prosecutor, Nifong had tauted defense attorneys by calling them "poultry" and being chicken to face him in court. And after lacrosse defense lawyer Kirk Osborn asked a judge to remove Nifong from the case, Nifong said, "If I were him, I wouldn't want to be trying the case against me either.”

Several lacrosse defense attorneys eventually testified at Nifong's disbarment hearing and they watched as Nifong wept and said he would resigned his office while on the witness stand.

Eliot Spitzer was also a braggart. He refered to himself as a steamroller, who would crush anyone who got in his way:
In late January, Jim Tedisco, a Republican and the minority leader of the State Assembly, was driving to Albany on the Governor Thomas E. Dewey New York State Thruway -- named for the last crime buster before Spitzer to catapult himself to the capital -- when his cell phone rang. It was the governor, asking him to attend a press conference announcing ethics-reform legislation. Tedisco resisted; he’d just been excluded from some key meetings, and feared he’d merely be a prop. (Spitzer recalls it was Tedisco, dissatisfied with his treatment by the governor, who initiated the discussion.) That was when he got what’s now known around Albany as the "Full Spitzer," or at least the electronic version, minus the bulging veins and spluttering that eyewitnesses get to see.

Spitzer’s voice suddenly changed, Tedisco recalls: it became louder, shriller, more guttural, more menacing. In three weeks he’d done more for New York State than any governor in history, Spitzer screamed. He was having enough trouble with the other goddamned legislative leaders, he went on; Tedisco would do what he was told -- or he’d be crushed. As if the point weren’t sufficiently clear, Spitzer put it another way, courtesy of James Taylor. "Listen," he shrieked, "I’m a fucking steamroller, and I’ll roll over you and anybody else."
8. Above the law mentality

Both men displayed a contempt for the law they were enforcing. Nifong boosted about how he supported providing defense attorneys with all the evidence he had in his case file well before 'open discovery' became the standard in North Carolina. However, when he needed to build a rape case in which he knew there was no evidence in order to save his job and build his pension he threw all those rules out the window. He withheld exculpatory DNA evidence and used his bully-boy investigators to manufacture a case out of the ramblings of a drug dependent mentally unstable prostitute. He also tried to use his thugs to intimidate a cab driver, who was an alibi witness.

Nifong got caught in the act for hiding DNA evidence from the court and that landed him in jail for 24 hours.

The Spitzer's misuse of the state police for political purposes, shady campaign finance records and dealings are all areas investigators are digging into. Spitzer may have more legal problems to deal with.

9. Hypocrites

Nifong stated that if the Duke lacrosse players were truly innocent why would they need defense lawyers. However, he quickly lawyered up once the state moved to disbar him. During his campaign for office Nifong often cited his integrity and honesty as a reason Durham should elect him DA. It turns out that Nifong had no integrity when he prosecuted the Duke case.

Ironically, Spitzer prosecuted a call girl ring that once employed the prostitute he hired. Spitzer's minions also tried to attack Dick Grasso's integrity by alleging some untoward relationship between Grasso and one of his assistants.
During the investigation into Grasso, Grasso’s personal assistant Soojee Lee was subject to questions. Contemporary press accounts reveal that sources familiar with the investigation were leaking information about Lee’s statements to reporters at the Wall Street Journal and the New York Times. At least some of these sources appear to have been members of Spitzer’s squad. A New York Times report by Landon Thomas says that “lawyers close to the investigation” described Lee as “reticent about her boss.”

But that wasn’t all Spitzer’s team was telling the press. According to Gasparino, aides to Spitzer alleged to him that Grasso was having an affair with Lee.

“Everyone knows Grasso is boning Soojee,” the aide said, according to Gasparino.
10. Liars

Nifong lied so many times during the Duke lacrosse case that those who followed the case had a full time job documenting all his lies. His most serious lies were when he tried to hide exculpatory DNA evidence from the defense. Those lies said in open court to Judge Oz Smith got Nifong sent to jail for one day.

Spitzer's lies are being investigated. Currently, the most prominent ones involved his attempts to use the NY State Police (and possibly the I.R.S.) to investigate and destroy a political opponent, Joseph L. Bruno, the power Republican leader of the NY State Senate (and now the new Lieutenant Governor of the State of New York as of March 17, 2008).
As soon as he reached Albany, Spitzer set out to destroy Bruno, first by trying to pick off from Republicans the few seats the Democrats need to take control of the State Senate. That’s just politics. So, too, was it just politics when Spitzer’s aides tried to prove that Bruno, who has led the Senate for the last dozen years, was a thief, flying off regularly to partisan political events on the taxpayers’ tab. What was not just politics, though, was when the governor’s office used the state police to help make his case. In July, Spitzer’s old nemesis, New York attorney general Andrew Cuomo, found that, while the governor’s people had broken no laws, the whole thing reeked. Spitzer quickly and abjectly apologized, something he has rarely had to do. But Troopergate, as the imbroglio has been called, still hangs over him like a dark cloud. As Jacob Gershman noted recently in The New York Sun, Wikipedia’s entry for Spitzer now devotes more lines to the scandal than to his glory years as attorney general.

At least as harmful to Spitzer has been his insistence that he had nothing to do with bringing in the state police, and that overzealous underlings were to blame. Making things worse has been his failure to testify under oath about it, or to hand over e-mails and other documents from his office. Seven of 10 New Yorkers—about the same percentage that voted for Spitzer—are calling for sworn public testimony.
11. Enablers

Nifong and Spitzer were each supported by a hoard of enablers, who aided and encourage their professional misconduct and abuse of power.

Media enablers. The mainsteam media lapped up the narrative of the crusading Attorney General attacking the rich robber-barron criminals on Wall Street. Two years ago that same mainstream media lapped up Nifong's narrative about rich, out of control, priviledged white jocks raping a poor black girl. Searching for the truth was never an option, when a great story is served up on a silver platter.

Staff and other professional enablers. The professional staffs for both men, consisting of licensed attorney's, fully supported and backed their rogue bosses. As officers of the court no one who worked for Nifong or Spitzer ever wavered in their support for the conduct of their bosses.

12. Both men employed lying hatchet men.
On July 27, 2007, the New York Post reported on Dopp's past interactions with the press on behalf of Spitzer. Reporter Charles Gasparino claimed that he was threatened by Dopp while covering then Attonery General Spitzer's investigation of the over-compensation of former New York Stock Exchange Chairman Richard Grasso.
Dopp was one of the key figures in the Spitzer political surveillance scandal (also known as Troopergate). Spitzer indefinitely suspended Dopp once his misdeeds were exposed.

Mike Nifong employed Linwood Wilson. KC Johnson said about Wilson:
The D.A.’s chief investigator—who received a promotion and a 66-percent raise as the lacrosse case was occurring—behaved like a caricature of a rogue investigator over the past year. He and he alone was present at the December 21 “interview” with Crystal Mangum, where Mangum radically changed her story in ways that—just coincidentally, of course—filled some of the gaping holes in Mike Nifong’s case. As Joe Neff revealed, one witness filed an affidavit accusing Wilson of witness tampering. He played a key role in the bogus prosecution of Moez Elmostafa after Elmostafa helped secure Reade Seligmann’s alibi.

Yesterday, Judge Orlando Hudson dismissed assault and weapons charges against Breon Jerrard Beatty because of Wilson’s conduct, suggesting that Wilson had “threatened” the chief witness in the case, Beatty’s cousin, to give false testimony. Hudson was clearcut: “Intimidation [of a witness] is wrong. I don’t want to reward the state when they do things like that.”
Nifong's replacement, Jim Hardin, soon fired Wilson after taking over the DA's office.

13. Both men used and abused their families.

Innocent family members and the family name became the ultimate victims of these rogues.

Spitzer and Nifong both have wives and teenage children. Spitzer has three teenage daughters. Nifong has a teenage son. Nifong used his wife and son as a prop at his five day state bar hearing to elict sympathy. Spitzer somehow got his wife, Silda, to stand beside him at both at his initial press conference offering an apology and at his resignation. He never looked at his wife or really acknowledged her presence at these two announcements. It was very strange.

You must feel sorry for all the children, who now will have to spend a lifetime dealing with having their last name dragged throught the mud by their fathers.

14. Shake down artists.

Both men sought political contributions from individuals and institutions that would potentially have dealings with them in their office. Conflict of interest was never a consideration in their practice of this unique American tradition: the political contribution shakedown.

Nifong sought and received political contributions from attorneys who would be dealing with him or his office in court. Likewise, Spitzer took political money as tribute from Wall Street firms that faced his scrutiny as New York AG and the High Sheriff of Wall Street.

Charlie Gasparino reported:
I wrote a story that called into question Spitzer's fund-raising practices by noting that Spitzer had asked a prominent hedge-fund manager for a campaign contribution while Spitzer was investigating the fund business.
Gasparino's 2004 Newsweek article raised questions about Spitzer's conflict of interest. Records show donations from firms Spitzer had investigated, reached settlements:
New York Attorney General Eliot Spitzer's office called the office of prominent hedge-fund manager Stanley Druckenmiller last fall and said, with a chuckle, that the purpose of the call wasn't a "regulatory matter," but that Spitzer wanted to chat, according to people who've heard the story from Druckenmiller. Later, Spitzer asked for a contribution, about $25,000 each from Druckenmiller and his wife, to the "Spitzer 2006" committee for his likely campaign as a Democrat for New York governor, reports Newsweek Senior Writer Charles Gasparino in the current issue.

Campaign-finance records show that Druckenmiller, who typically supports Republicans, and his wife, Fiona, each contributed $25,000. He declined to comment, but didn't deny the story, Gasparino reports. Spitzer's office confirms the call, but noted that he rarely asks for specific dollar amounts.

Gasparino reported details about Spitzer's fund-raising efforts, which raise new questions about conflicts of interest for him. To be clear: Spitzer has done nothing illegal; at issue is whether his own actions meet the standards he's championed. Spitzer, through a spokesman, says he sees no conflicts in accepting the money if those who donate have no "pending business matters before the office."

Gasparino cites another example: attorney Gary Naftalis, who represented Canary Investment Management, the first target in Spitzer's hedge-fund inquiry, cut a deal with Spitzer for Canary to pay $40 million last year without accepting criminal liability. Two months later Naftalis's law firm contributed $10,000 to Spitzer.
15. Both men were brought down for using a prostitute.

Nifong built his hoax rape case on the ever changing stories of a drug-addled prostitute name Crystal Gail Mangum. She never told the same story twice about the alleged gang rape. Nifong pretended to believe Mangum until he was forced out of office. Afterwards, he finally after two lame attempts offered a third apology to the three men he falsely prosecuted.

Elliot Spitzer fell for the charms of a 22-year-old high priced prostitute, named Ashley Alexandra Dupré.

16. Both men are Democrats.

Nothing here against Democrats, however, in this case just to finish the comparison, it's worth noted that both Nifong and Spitzer are Democrats. There are of course rogue prosecutors, who are Republicans. The unique power that the American legal system invests in politically elected prosecutors has become a two edged sword that cuts both for good and evil, Democrat and Republican.

One list of the 10 worst prosecutors of 2007 has both Republicans and Democrats.

Two more things that Spitzer and Nifong might soon have in common.

1. Disbarment

Nifong was disbarred for his prosecutorial misconduct. Spitzer if he's convicted of a crime under the Mann Act, for transporting person across state lines for prostitution, might face disbarment in NY.

2. Jail time

Mike Nifong spent one day for lying to the court. It would be justice if Elliot Spitzer also spent a token night in jail for violating the Mann Act, if the evidence holds up. It would show that no man is above the law.

Happy Days: burying Mike and Eliot

Seeing the arrogant bully Mike Nifong disbarred, removed from office, and jailed for one day were highlights for those who following the Duke sage and supported the innocence of the Duke lacrosse players. Likewise the demise of Eliot Spitzer brought a smile to Wall Street during an otherwise gloomy time.

Loathesome Eliot

DealBreaker had A Wake For Eliot Spitzer’s Political Career:
In honor of our fallen governor, DealBreaker will be hosting an impromptu happy hour at Spitzer’s Corner on Manhattan’s Lower East Side starting around 5:30 this afternoon. If you get there early enough, we’ll probably spring for a round or two. We hope you’ll join us as we raise a glass to the end of the dirty, rotten legacy of Loathesome Eliot.
Afterwards: We Came Not To Praise Spitzer, But To Bury Him.

This St. Patrick's Day let's all raise a pint to the end of Mike, Eliot and all rogue prosecutors.

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The Big Picture - Barry Ritholtz

naked capitalism - Yves Smith

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