[QUOTE=Huerta88]
A civil tort action for wrongful prosecution:
Also, there is no per se reason (legally) why a prosecutor can’t (wouldn’t, shouldn’t) interview a complaining witness (CW). My friend the assistant DA routinely (i.e., always) does this – in her case the CWs are mostly undercover cops (narcotics cases), but she also interviews third-party eyewitnesses and even (sometimes, with consent of counsel) defendants.
She would never put a cop on the stand without hearing his story, assessing his credibility, seeing if he is going to fall apart under cross exam or be unable to keep his story straight. In fact (I’ll have to ask her) I think she talks to the CWs not only before trial, but before even taking a case to the Grand Jury.
Dumbfuck Nifong is essentially saying that the fact of an arrest/allegation is his basis for probably cause, in which case he’s essentially nullified or punted on the point of requiring a determination of probable cause before indicting.
BTW, we need to cut the stupid fucker a break as far as not talking to the CW, the second stripper, or the cab driver – to be fair, while he didn’t bother taking their evidence, he did arrange for a cushy plea for Kim, and he did manage to have the cab driver hauled in on a bogus old warrant after he spoke up to provide an alibi. So while he’s not so good at witness interviewing, he’s great at witness manipulation and intimidation.
Seriously, somebody, anybody in N.C. – file an ethics complaint with the N.C. State Bar.
[/QUOTE]
Mods: Sorry for the last portion, forgot which forum we were in, pls. disregard the non-factual commentary/adjectives . . . .
Nifong may be trying to provide himself some legal cover at this point. By now, his entire case has pretty much been reduced to the accusation of the alleged victim. While this is slim, Nifong can still claim that he has a legitimate case. Based on what I’ve heard, it appears likely the case will fall apart if it reaches court. As Huerta pointed out, there will probably be future civil lawsuits filed by the defendants claiming that there was never sufficient evidence to prosecute. If Nifong directly interviewed the woman about her claims and then decided to prosecute, it would probably have increased his future liablity. Now he can at least claim, “Wow, I never realized her statements weren’t credible. If I had only known I never would have proceeded with the case.”
[QUOTE=MrFloppy]
Without hijacking the thread, can I quickly ask if there would be any recourse for the accused whose families have no doubt forked out beaucoup dollars to defend their offspring?
[/QUOTE] K.C. Johnson has been keeping a blog on the case almost from day one. He is not a lwayer, but his bona fides as a scholar are indisputable. In the link, scroll down to the one titled “A ‘Technicality’” where he lays out his case for prosecutorial misconduct.
If you have the time, check back through his archives for some fascinating reading. It will take some time, as he is very thorough and well-reasoned.
[QUOTE=Huerta88]
A civil tort action for wrongful prosecution:
[/QUOTE]
But only against the complainant (and the cops under some circumstances). The prosecutor has absolute immunity. State ex rel Jacobs v. Sherard, 36 N.C. App. 60; 243 S.E.2d 184; 1978 N.C. App. LEXIS 2405 (1978) ("Judges and judicial officers have always been awarded “absolute” immunity for their judicial acts. Absolute immunity covers even conduct which is corrupt, malicious or intended to do injury. Prosecutorial immunity is likewise absolute because it is really but a particular manifestation of judicial immunity.)
[QUOTE=Gfactor]
But only against the complainant (and the cops under some circumstances). The prosecutor has absolute immunity. State ex rel Jacobs v. Sherard, 36 N.C. App. 60; 243 S.E.2d 184; 1978 N.C. App. LEXIS 2405 (1978) ("Judges and judicial officers have always been awarded “absolute” immunity for their judicial acts. Absolute immunity covers even conduct which is corrupt, malicious or intended to do injury. Prosecutorial immunity is likewise absolute because it is really but a particular manifestation of judicial immunity.)
[/QUOTE]
So even if you can prove misconduct, there’s no recourse against a corrupt or incompetent Judge or Prosecutor re a monetary judgement against them for your legal fees?
Out of curiousity, could the bar association effectively do anything to Nifong?
Strip him of the right to practice when out of office?
I can’t imagine they could knock him out of elective office…
Could they threaten to disbar any ADA who assisted him in prosecuting this case?
[QUOTE=astro]
So even if you can prove misconduct, there’s no recourse against a corrupt or incompetent Judge or Prosecutor re a monetary judgement against them for your legal fees?
[/QUOTE]
You got it.
The state bar has a lot of discretion in licensing attorneys. They could disbar him, although it’s not clear he’s done anything to merit it here. Here is a case where a prosecutor was disbarred: http://www.supreme.state.az.us/opin/pdf2004/SB-03-0015-D.pdf
If he were disbarred, it could present a conundrum, assuming he didn’t step down. According to the state constitution, licensure is a requirement for election. A narrow reading of the statute would permit him to stay in office, but prevent his re-election. OTOH, a broader reading would permit his disqualification. Of course, there may be other methods of removing a prosecutor from office (impeachment, for example).
BTW, even if the second dancer committed perjury, wrongly charged defendants probably couldn’t sue her either. E.g.,, Elam v. Gould, 594 S.E.2d 156; 2004 N.C. App. LEXIS 386 (2004); Sharp v. Miller, 121 N.C. App. 616; 468 S.E.2d 799; 1996 N.C. App. LEXIS 119 (1996) (witness immunity well-established, extends to allegations of perjury); Hall v. Piedmont Pub. Co., 46 N.C. App. 760; 266 S.E.2d 397; 1980 N.C. App. LEXIS 2948; 6 Media L. Rep. 1333 (1980) (witness immunity is an absolute privilege). See generally, When are Expert Witnesses Liable for their Malpractice?: When are Expert Witnesses Liable for their Malpractice? (explaining witness immunity).
Of course, she would still be subject to prosecution for any crimes (perjury, obstruction, etc.) that she committed.
[QUOTE=Gfactor]
BTW, even if the second dancer committed perjury, wrongly charged defendants probably couldn’t sue her either. E.g.,, Elam v. Gould, 594 S.E.2d 156; 2004 N.C. App. LEXIS 386 (2004); Sharp v. Miller, 121 N.C. App. 616; 468 S.E.2d 799; 1996 N.C. App. LEXIS 119 (1996) (witness immunity well-established, extends to allegations of perjury); Hall v. Piedmont Pub. Co., 46 N.C. App. 760; 266 S.E.2d 397; 1980 N.C. App. LEXIS 2948; 6 Media L. Rep. 1333 (1980) (witness immunity is an absolute privilege). See generally, When are Expert Witnesses Liable for their Malpractice?: When are Expert Witnesses Liable for their Malpractice? (explaining witness immunity).
Of course, she would still be subject to prosecution for any crimes (perjury, obstruction, etc.) that she committed.
[/QUOTE]
Why would they want to sue the 2nd dancer? As far as I’ve heard she disputes that any crime took place, or has she changed her story too?
[QUOTE=A.R. Cane]
Why would they want to sue the 2nd dancer? As far as I’ve heard she disputes that any crime took place, or has she changed her story too?
[/QUOTE]
I saw Roberts, the 2nd dancer, interviewed on 60 Mins., I think it was last sunday, or the sun. before. She disputed several points of the victim’s story. She said she wasn’t in the bathroom, so couldn’t say whether a rape took place, but Roberts version makes is seem doubtful.
[QUOTE=astro] Prosecutor Yet to Interview Rape Accuser
Seems odd. Is it standard operating procedure for Prosecutors to leave something like this (purported) victim’s interview to the last moment?
[/QUOTE]
These prosocuters think it very much is **not **SOP. Scroll down to the entry for 11/01.