Should District Attorney Nifong see jail time?

[Triskadecamus]

Isn’t the judge who heard this sworn testimony required to make sure that probable prosecutorial misconduct is at least investigated?

Tris

[CheeringElvi]

@Bricker

Meehan’s confession is certainly strong evidence against Meehan. But it’s slightly less strong against Nifong. If Nifong and Meehan were tried jointly for this offense, Meehan’s confession could not be admitted against Nifong.

But is there any reasonable circumstance under which Meehan and Nifong would be tried jointly if that were the case? I’m not a lawyer but I have seen TV lawyers separate defendants for just this reason Honestly. As you said, Meehan’s confession and the other evidence he might be able to provide (timelines, correspondence and such) should be pretty damning for both parties - although stronger against Meehan since it’s his confession.

[Bricker]

@Cheesesteak

We have an uncorroborated statement that a crime was committed, so the next steps are clear. Arrest Nifong immediately, bring him before a grand jury and get him indicted for a felony, force him to post bail and defend himself in the press. Then, months and months later, whatever clear and convincing evidence there is to exonerate him can be brought to the criminal trial and he can be acquitted.

A bit less tongue in cheek, does Meehan personally have a duty to make the information public or known to anyone other than Nifong? Did he testify in court that the amended report was complete prior to this new admission? Maybe I’m missing a detail, but I’m not sure what crime he committed. I can’t really fault the guy for going along with the DA’s orders, considering how much this DA has made life hell for 3 people who didn’t screw him over.

That’s a good question.

I don’t know North Carolina law. The duty to reveal exculpatory material to the defense is the result of a Supreme Court decision; the remedy for violatin of that mandate is presumably limited to reversal of a conviction on appeal.

It’s very likely that North Carolina law or court procedural rules codify this requirement, and possibly prescribe some criminal penalty for violation of it… but I don’t know.

Now, if Nifong and Meehan colluded to railroad these boys into jail, knowing they were innocent, then that is a conspiracy crime in and of itself, and the withholding of evidence may be the overt act that finalizes their conspiracy.

[Bricker]

@CheeringElvi

But is there any reasonable circumstance under which Meehan and Nifong would be tried jointly if that were the case? I’m not a lawyer but I have seen TV lawyers separate defendants for just this reason Honestly. As you said, Meehan’s confession and the other evidence he might be able to provide (timelines, correspondence and such) should be pretty damning for both parties - although stronger against Meehan since it’s his confession.

Of course – a conspiracy case is most often tried against multiple members of the conspiracy for many reasons – judicial economy being the one most often cited by the prosecution, but there’s a good procedural reason for it as well: the conspiracy case often permits the introduction of statements which would in solo trials constitute hearsay.

In this case, the mere existence of Meehan’s confession would not be nearly enough to mandate severance. The likely result would be the confession being read in redacted form to the jury, changed so it only implicates Meehan. If the editing could not eliminate references to another person without destroying the context or credibility, then it’s read with JOHN DOE substituted in place of Nifong’s name, and the jury instructed that they may consider this piece of evidence only against meehan and not against Nifong.

[Polycarp]

Umm… small problem with that. “John Doe” is, in Bricker’s hypothetical, an unidentified person who is the elected official heading the prosecutorial district comprising Durham County, which does tend to reduce the number of people in that class to one. But yes, it’s acceptable in that it does not identify Nifong by name as the anonymous elected district attorney for that district with whom Meehan spoke.

[Contrapuntal]

@Bricker

Meehan’s confession is certainly strong evidence against Meehan. But it’s slightly less strong against Nifong. If Nifong and Meehan were tried jointly for this offense, Meehan’s confession could not be admitted against Nifong.

FWIW, Meehan was Nifong’s witness, produced to confront the defense motion that DNA Security had withheld exculpatory evidence. Under cross-examination he admitted that together they had decided to leave out the information referring to the other five males.

I don’t know North Carolina law. The duty to reveal exculpatory material to the defense is the result of a Supreme Court decision; the remedy for violatin of that mandate is presumably limited to reversal of a conviction on appeal.

Not a legal cite per se, but probably good enough for the sake of the discussion.

North Carolina Governor Signs Open Discovery Bill Into Law
North Carolina Governor Mike Easley signed a bill into law that requires prosecutors to share their files in all felony cases. The bill was approved in the wake of allegations that prosecutors withheld evidence in the capital murder trial of Alan Gell, who was later exonerated and freed from death row. The new open discovery statute requires district attorneys to open their investigative files in felony cases to defense lawyers who request such access prior to trial. The law requires DAs to provide such things as police investigator notes, defendant and witness statements, test results and a list of probable witnesses for the trial. In return, defense attorneys will have to provide the state with witness lists and details about the grounds on which they plan to defend their client. Dick Taylor of the North Carolina Academy of Trial Lawyers said the law should “result in less surprise, less ambush and more fair trials.” He went on to note, “I think it’s one of the most significant developments in our criminal procedure for a number of years.” Although, when Easley was the state’s attorney general, his staff fought attempts by defense attorneys in capital cases to gain access to prosecutors’ files, his spokeswoman stated that Easley has long been in favor of open discovery. (Associated Press, August 4, 2004)

From Here.

[Contrapuntal]

I have received permission from the author of this blog to quote at will. Here is an example of how Nifong has handled similar cases in the past.

DNA results,” said Mike Nifong on April 11, “can often be helpful, but, you know, I’ve been doing this for a long time, and most of the years I’ve been doing this, we didn’t have DNA. We had to deal with sexual assault cases the good old-fashioned way. Witnesses got on the stand and told what happened to them.”

As noted on Monday, Nifong failed follow this approach in a 1989 “gang rape” allegation that he oversaw. Then, police tested the accuser’s credibility—in part by having the person supervising the investigation actually speak to the accuser. When “embarrassing” contradictions in her story were discovered, Nifong dropped the charges. The accuser never “got on the stand and told what happened to [her].” Instead, the prosecutor exercised discretion, as he is required to do under the North Carolina Rules of Professional Conduct.

In fact, before the DNA results failed to give him what he needed politically in the lacrosse case, Nifong seemed to believe exactly the opposite of what he suggested on April 11. In a 2000 case, he maintained that since DNA evidence trumped witness identifications, DNA tests could—and should—exclude the falsely accused.

In early 2000, two rapes occurred in the Trinity Park neighborhood, off Duke’s east campus. Acting under strong pressure from the Trinity Park “community,” police charged a black homeless man, Leroy Summers, based solely on an identification from the second woman who was raped. According to the April 8, 2000, edition of the Herald-Sun, Ed Sarvis (last heard from confirming that the DPD has an official policy of disproportionately meting out punishment to Duke students) expressed confidence in the department’s actions—although, he added, “we’re still in the process of collecting probable cause.” Summers could not meet his $150,000 bail.

Maybe the police should have tried a little harder to ascertain probable cause before making an arrest. After Summers was charged, the police sent a rape kit to the State Bureau of Investigation lab. Lacking any political pressure for a fast turnaround, the lab took more than three months to perform its tests. When the results came in, no match existed for Summers’ DNA. But a male DNA specimen was found. Technicians ran the result through a national crime database, revealing the DNA of Jeffrey Lamont McNeill, who subsequently was charged with the crime.

According to the July 12, 2000 N&O, the prosecutor issued a definitive written statement: “Results of DNA testing exclude the defendant as the perpetrator of this crime.”

The prosecutor’s name: Mike Nifong.

In 2000, then, Nifong viewed DNA as so important that it would “exclude” someone he had already charged with the crime, someone who the victim had identified. (And yes, in this case, there was a real victim.) By 2006, not only had Nifong abandoned his position on DNA (even as most others in law enforcement have become more reliant on DNA evidence), but, on April 10, in a conversation with Dr. Brian Meehan, he contended that a finding of other males’ DNA was not even potentially exculpatory for defendants, and therefore should be excluded from Meehan’s report.

Nifong isn’t the only case-related figure to have performed a 180-degree change between the Summers case and the lacrosse case. Writing in the July 11, 2000 Herald-Sun, John Stevenson penned an article on the Summers dismissal framed wholly around the unreliability of eyewitness IDs vis-à-vis DNA evidence.

According to Stevenson,

The Samuels case is not the first time a Durham rape victim reportedly identified the wrong man.

Veteran lawyer Tom Loflin told The Herald-Sun two weeks ago that he once defended a rape suspect who ultimately was cleared by DNA evidence.

According to Loflin, the suspect was accused of raping a woman who lived near him in an apartment complex. The victim said the man broke into her apartment, brutally raped her and then returned to his own apartment.

Loflin said the victim claimed to be certain of her identification. So Loflin’s client was indicted.

But before the case went to trial, a DNA analysis cleared the suspect, even though DNA testing was not as sophisticated then as it is now, Loflin said.

“I have no reason to think this woman would lie,” Loflin added. “I think she was just outright mistaken.”

Loflin said academic studies have proven that, in general, eyewitness testimony is “enormously unreliable.

“Only a tiny fraction of eyewitnesses get it correct,” Loflin said. “This now has been established by DNA testing.”

Nevertheless, juries still tend to think that eyewitness testimony is the strongest form of evidence, even though it actually is the weakest, Loflin contended.

“You have juries believing victims and other eyewitnesses who are notoriously unreliable,” he said. “Juries really need to be educated that eyewitnesses are extremely shaky. It’s dangerous to convict someone on their testimony if there is no corroborating evidence, such as fingerprints or DNA.”

It appears that Stevenson, much like Nifong, has changed his mind about the value of DNA and the sanctity of even the most unreliable and procedurally flawed eyewitness identifications.

In a June letter to the New York Times, St. Louis attorney Thomas Schlafly offered a stinging rebuke of Nifong’s “old-fashioned” comment:

There’s a big difference between convicting a defendant without DNA evidence because the technology did not exist and convicting a defendant when DNA evidence is available and the DNA results are negative.

In the first instance, there would have been no DNA evidence to counter the testimony of witnesses. In the second, such DNA evidence exists and is exculpatory.

It turns out the actual situation is even worse than Schlafly imagined.

Based on his conduct in the Summers case, Nifong once believed that when “DNA evidence exists and is exculpatory,” rape charges must be dropped. After his pre-primary publicity barrage, however, his beliefs clashed with his personal and political needs. And so, in early April, Nifong would deem irrelevant for Collin Finnerty and Reade Seligmann the same type of test results that freed Leroy Summers, while the district attorney joined Meehan to do everything they could to ensure that these results would never see the light of day.

The Nifong motto:

In 2000, the DNA excludes; in 2006, exclude the DNA.

[Triskadecamus]

So, I still want to know.

A judge, who sat and listened to a witness for the Prosecution state, under an oath administered in the presence of said judge, during a trial over which said judge has complete judicial authority, and heard the witness state that the Prosecutor willfully withheld exculpatory evidence from the defense, while presenting evidence from that same source in support of his case. Does the law place any responsibility whatsoever on the judge in this case?

Just wondering.

Tris

[Contrapuntal]

@Triskadecamus

So, I still want to know.

A judge, who sat and listened to a witness for the Prosecution state, under an oath administered in the presence of said judge, during a trial over which said judge has complete judicial authority, and heard the witness state that the Prosecutor willfully withheld exculpatory evidence from the defense, while presenting evidence from that same source in support of his case. Does the law place any responsibility whatsoever on the judge in this case?

Just wondering.

Tris

I have no idea whether this is relevant, but it was not a trial. It was a hearing to hear defense motions with regard to the DNA evidence, the flawed lineup, and a change of venue.

[Contrapuntal]

From a *Raleigh News and Observer *editorial.

Why the D.A. should be off the case
…

In court Friday, the head of a lab that Nifong retained to analyze DNA samples testified that he and Nifong intentionally decided to exclude from the expert’s report the fact that DNA analyzed from the clothes and body of the accuser did not belong to any of the defendants but came instead from unidentified males.

N.C. General Statute 15A-903 requires that a prosecution expert provide a report of the results of any tests performed and that the prosecutor furnish that report to the defense. Deciding to exclude these results is deciding to violate this law.

A prosecutor also has an obligation under the U.S. Constitution and under N.C. Rule of Professional Conduct 3.8 to disclose to the defense evidence which tends to suggest the innocence of a defendant – including evidence that calls the credibility of a state witness into question. DNA results showing the absence of DNA material from the accused and the presence of DNA material from other men goes to the credibility of the accuser’s account and therefore needs to be disclosed.

Link.

[Spoke]

Regarding the possibility of disbarment or sanctions by the State Bar (as distinguished from a criminal prosecution), here is the relevant language from the North Carolina Rules of Professional Conduct:

RULE 3.8 SPECIAL RESPONSIBILITIES OF A PROSECUTOR

The prosecutor in a criminal case shall:

…(d) make timely disclosure to the defense of all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense, and, in connection with sentencing, disclose to the defense and to the tribunal all unprivileged mitigating information known to the prosecutor, except when the prosecutor is relieved of this responsibility by a protective order of the tribunal…

Punishment for violation of the Rules is delineated in N.C.G.S. § 84‑28

§ 84‑28. Discipline and disbarment.

…(b) The following acts or omissions by a member of the North Carolina State Bar or any attorney admitted for limited practice under G.S. 84‑4.1, individually or in concert with any other person or persons, shall constitute misconduct and shall be grounds for discipline whether the act or omission occurred in the course of an attorney‑client relationship or otherwise:

(1) Conviction of, or a tender and acceptance of a plea of guilty or no contest to, a criminal offense showing professional unfitness;

(2) The violation of the Rules of Professional Conduct adopted and promulgated by the Council in effect at the time of the act;

(3) Knowing misrepresentation of any facts or circumstances surrounding any complaint, allegation or charge of misconduct; failure to answer any formal inquiry or complaint issued by or in the name of the North Carolina State Bar in any disciplinary matter; or contempt of the Council or any committee of the North Carolina State Bar.

(c) Misconduct by any attorney shall be grounds for:

(1) Disbarment;

(2) Suspension for a period up to but not exceeding five years, any portion of which may be stayed upon reasonable conditions to which the offending attorney consents;

(3) Censure – A censure is a written form of discipline more serious than a reprimand issued in cases in which an attorney has violated one or more provisions of the Rules of Professional Conduct and has caused significant harm or potential significant harm to a client, the administration of justice, the profession or members of the public, but the protection of the public does not require suspension of the attorney’s license;

(4) Reprimand – A reprimand is a written form of discipline more serious than an admonition issued in cases in which an attorney has violated one or more provisions of the Rules of Professional Conduct, but the protection of the public does not require a censure. A reprimand is generally reserved for cases in which the attorney’s conduct has caused harm or potential harm to a client, the administration of justice, the profession, or members of the public; or

(5) Admonition – An admonition is a written form of discipline imposed in cases in which an attorney has committed a minor violation of the Rules of Professional Conduct…

And here’s what the Rules of Professional Conduct themselves say about punishment:

0.2 SCOPE

…[21] Failure to comply with an obligation or prohibition imposed by a Rule is a basis for invoking the disciplinary process. The Rules presuppose that disciplinary assessment of a lawyer’s conduct will be made on the basis of the facts and circumstances as they existed at the time of the conduct in question and in recognition of the fact that a lawyer often has to act upon uncertain or incomplete evidence of the situation. Moreover, the Rules presuppose that whether or not discipline should be imposed for a violation, and the severity of a sanction, depend on all the circumstances, such as the willfulness and seriousness of the violation, extenuating factors and whether there have been previous violations…

[Contrapuntal]

Link.

[Contrapuntal]

Spoke too soon. Only dropping rape charges. Nifong is an idiot.

[Steve_MB]

@Contrapuntal

Spoke too soon. Only dropping rape charges. Nifong is an idiot.

This is clearly an attempt to avoid the introduction of the DNA evidence, which shows that the accuser has the credibility of a used car salesman claiming that his latest offering is powered by nuclear fusion and capable of travelling back in time.

Disbar; try; convict; imprison.

[John_Mace]

@Steve MB

Disbar; try; convict; imprison.

; repeat.

[HubZilla]

Hope this isn’t too much of a hijack, but can Tawana Brawley II be imprisoned for this, too? She really put everyone through the wringer on this one.

[Contrapuntal]

Apparently, the alleged victim is no nonger sure that she was actually raped. Link.

According to court papers filed today by District Attorney Mike Nifong, the accuser told a prosecution investigator on Thursday that she now does not know if she was penetrated during the alleged attack.

Any relationship between this revision of events, and the revelations of the most recent hearing, are purely coincidental. Right, Mike?

I suppose the AV could be liable for civil damages, but what would be the point?

Perhaps she is guilty of filing a false police report. I’m sure Nifong will get right on that.

[Contrapuntal]

Currently there is a press conference by the attorneys of the three real victims in the case. National news media are carying it. Joe Cheshire is pounding Nigong into protozoa.

[gonzomax]

In order to escape, Nifong will have to get them for something. he will have to pursue the other charges and get a conviction . It is sad for the students. Trapped in a a prosecution with political overtones.

[Contrapuntal]

@gonzomax

In order to escape, Nifong will have to get them for something. he will have to pursue the other charges and get a conviction . It is sad for the students. Trapped in a a prosecution with political overtones.

My prediction is that this case will not survive the next hearing, scheduled for February fifth. The alleged victim is scheduled to take the stand. IMO, the last place in the world she wants to be is facing Joe Cheshire on the witness stand. Did you see the press conference yesterday? His point by point, graphically specific description of her statement to police? And now she is not sure it happened?

Nifong has essentially bailed on her, as can be ascertained from this NY Times interview.

“I have told the defense attorneys that if at any time the victim in this case tells me that she thinks that one of these people who have been identified was not her assailant, as soon as she tells me that, then that case will go away,” he said. “I’ve said I’m not interested in prosecuting somebody that’s innocent. But until she tells me that, until she tells me these are not the right guys, we’re prosecuting this case.”

In other words, it’s up to her. He’s just doing what she wants him to do. Hey, if her memory gets a little fuzzy, it’s not his fault, right?

Never mind that he knew in April, before he went to the grand jury, that the DNA evidence proved that none of the defendants had raped her. He still went ahead with the rape charges, supposedly because she wanted him to. I say ‘supposedly,’ because until last Thursday, neither he, nor anyone from his office, had ever interviewed her about the night in question! Never mind that he called the defendants hooligans, described their actions as being particularly heinious because they were racially motivated, and demonstrated for the camera just how she might have been strangled, all without once talking to her himself. He did what he had to do, and if she wants him to stop, his hands are tied. Right?

It is extremely rare in NC for a DA to be criminally charged for actions while in office. A civil suit has a better (if still slim) chance of succeding. The U.S. Attorney General is “looking into” the case.

Will he serve time? IMO, no. Is his career over? One can only hope.