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.”
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.
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.)
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?
You got it.
Couple things.
http://statelibrary.dcr.state.nc.us/nc/stgovt/article_iv.htm
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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
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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.
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?
She’s modified her story a little, at least, it seems: 2nd stripper now believes accuser’s story or a least changed her “characterization of the events.” http://abclocal.go.com/ktrk/story?section=nation_world&id=4709319
And all I said was that if she did commit perjury, she probably wouldn’t be liable–assuming she did commit perjury, they’d probably want to sue her.
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.
These prosocuters think it very much is **not **SOP. Scroll down to the entry for 11/01.