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Wednesday, May 17, 2006

Duke Lacrosse Scandal: DA Mike Nifong - Fool or Fox?

updated: May 18, 2006

Mike Nifong - Durham District Attorney Mike Nifong celebrates winning primary election

Mike Nifong - unprofessional pandering fool or wily fox?

Mike B. Nifong with his dog Mike Nifong - I pledge to maintain the District Attorney's Office with dignity and honor

Mike Nifong is an unprofessional pandering fool. Mike Nifong is crazy like a fox.

The Durham District Attorney, Mike Nifong, will have one of these two labels hung on him after this Duke Lacrosse mess is resolved.

Right now, it is "about 90%" certain on which label that will be. Perhaps, "he looks just like the fool without the clue," but corroborating evidence is needed.

The jury of public opinion still needs proof beyond a reasonable doubt to convict him. So everyone has to wait and see what Mr. Nifong has up his sleeve.

Reporters are even following Mr. Nifong to the bathroom hoping to learn something. The Charlotte Observer reports - Pointing TV mikes, fingers in Durham:

Legal observers cite startling level of leaks, acrimony, publicity

"Shameful, shameful, shameful."

That's what Durham District Attorney Mike Nifong said this week as swarms of reporters buzzed outside his office, even filming his trips to the bathroom as they tried to get the latest scoop on the rape case involving members of the Duke University lacrosse team.

Shortly afterward, however, defense lawyers hurled similar accusations at Nifong, saying in a live, nationally televised news conference that he pursued innocent young men to win publicity and re-election.

Some legal observers say they've never seen an N.C. case receive as much national publicity, generate as much animosity among the lawyers involved...

More questions about the ethics of Mike Nifong:
reporter Shae Crisson asked him [Mike Nifong] early on if he had any doubt that the woman was assaulted, strangled and raped.

"There's no doubt, as far as I'm concerned," Nifong said.

The district attorney has said much more, making statements about evidence and the accuser.

Many attorneys and prosecutors have questioned that practice. One of them is former prosecutor and now defense attorney Karl Knudsen, who quoted from the State Bar's rules of professional conduct. He pointed out rule 3.6, which "prohibits extrajudicial statements that have a substantial likelihood of prejudicing an adjudicatory proceeding. In the context of a criminal prosecution, a prosecutor's extrajudicial statement can create the additional problem of increasing public condemnation of the accused."

"Guarantees as to the trustworthiness of the evidence or to preview it or to talk about the credibility of the witnesses, that, I think, is where you cross the line," Knudsen said.

He says that when a district attorney fires the first shot, the rules of professional conduct allow defense attorneys to respond.

Mike Nifong certainly fired the first shot, more like a salvo.

The News & Observer Newspaper editorial today questions Mike Nifong's fairness, ethics, and judgement:
Fairness to the woman who says she was attacked includes the filing of charges if authorities believe they can prove commission of a crime. But it also should mean a willingness by prosecutors to consider evidence that may tend to clear people who have come under suspicion.

These are opinions of how Mike Nifong has handled the Duke lacrosse case, so far, from lawyers who went to Duke Univesity.

Legal Response #1:
I am a licensed NC attorney, and a Duke alum and athlete, but I'll do my best to not let that factor in...

I can recall at the beginning of this case, Nifong on one particular occasion questioned the players' "manhood" which I found to be morally reprehensible as an attorney. The public forum held on the NC Central Campus was in my professional opinion, completely inappropriate as it did nothing of any substantive value for the case.
Legal Response #2:
I am a prosecutor with a ton of pretty heavy duty trial experience in a big city DA's Office....

Nifong's blind march to ignominy will ultimately destroy not only his own reputation and career, but will severely damage Duke, Duke-Durham relations, and the criminal justice system as a whole, not only in that geographical area, but to a degree nationwide. What a travesty.
Legal Response #3:
I don't understand how the ethics process works in North Carolina and how all of this open airing of prosecution and defense cases passes muster, but this is getting well past theater of the absurd.
Legal Response #4:
I have been so hesitant to post about the whole Duke LAX mess. I have such mixed emotions. As a Duke grad (T88) I am saddened by the whole affair.

As a career prosecutor (14 years) it's just another difficult case. So much has been made of Nifong's actions. I have to say that I haven't followed his actions so closely, but from what I've seen, he hasn't done anything out of the ordinary.
Legal Response #5
I am a professor of law and I divide my time between the University of Maryland School of Law and a graduate program in legal and ethical studies at the University of Baltimore. Criminal law is one of my teaching interests. Before I began teaching, I worked in the Criminal Appeals Division of the Maryland Attorney General's office.
Without getting into too detailed of a bill of particulars, he (Nifong) has violated, not one but likely, several ethical rules. There is little doubt at this point as to his egregious and systematic violation of the rule against publicly commenting on matters likely to be tried in court. Not only is he tainting the jury pool by trying the case in the media, he is using the opportunity to do so to make arguments to the jury pool that he could not make in court. Calling the defendants 'hooligans', suggesting that innocent people do not need lawyers and inviting the inference of guilt from the silence of the accused are things that would bring instant and vigorous rebuke if uttered in open court and could potentially be grounds for mistrial or contempt of court.
Nifong also likely violated the rule against directly contacting persons represented by counsel when police went to interview the team members at their dorm. A basic legal principle is that a person cannot do through the use of an agent what he himself cannot do personally. Caselaw I have seen suggests that this is the principal applied where a prosecutor uses or encourages police to question suspects represented by counsel. The circumstances suggest that Nifong sent officers to get information he desperately needed in order to go forward with his indictments. Indeed, Nifong himself has been quick to tell us that he is the one directing the investigation, not police. This conduct is a serious matter and typically leads to reprimand or sanction in the state where I live.
Nifong, also likely violated the rule that requires prosecutors to pursue charges only were they personally believe that the accused has committed a crime and not simply because they believe they can secure a conviction. Many prosecutors try to avoid this duty by being agnostic or simply not thinking about it. However, Nifong went beyond that and took a position of willful ignorance by refusing to consider or even look at the exculpatory evidence presented to him by defense attorneys. Willful ignorance is not a defense to any guilty act and, even if the defendants did commit a rape, Nifong violated the rule by consciously shielding himself from any evidence that might have made him think twice about his decision to prosecute.
Duke Lacrosse Scandal: Mike Nifong the Liar [TJN, June 15, 2006]
Duke Lacrosse Scandal: Revenge, Injustice & Prosecution Lies [TJN, June 1, 2006]

Some Legal Insights On The Lax Situation [dukebasketballreport.com, May 15, 2006]
Mike Nifong District Attorney [mikenifong.com]
New Questons about Ethics in LAX Case [abc11tv.com, May 16, 2006]
Standards of fairness [newsobserver.com, May 17, 2006]

Duke Rape Case: Prosecutor Mike Nifong Shares Evidence with Black Panthers [TJN, May 3, 2006]
Duke Lacrosse Rape: Defense wants DA Nifong thrown off case [TJN, May 2, 2006]

Duke Lacrosse Case [TJN Archives]