Civil Suit Enhanced

One interesting possibility presented by the charges filed by the NC State Bar against Defendant Nifong is the enhanced potential for civil liability resulting from a determination of misconduct by the Disciplinary Hearing Commission. It appears that the actions outlined in the complaint fall outside of Defendant Nifong’s role as a prosecutor and thus the actions described are not protected by the absolute immunity normally afforded a prosecutor.

"Ordinarily, prosecutors enjoy absolute immunity from civil liability in connection with their pursuit of a criminal case. That makes sense: As the Supreme Court has commented, exposing prosecutors to civil liability would undermine the functioning of the criminal justice system.

"But, not all prosecutorial conduct enjoys absolute immunity. To the contrary, in Buckley v. Fitzsimmons, the Supreme Court held that a prosecutor was not absolutely immune from civil liability for false statements made in a press conference and for other pre-trial investigative conduct; in that case, only "qualified immunity" applies.

"The Court explained that this is because "[t]he conduct of a press conference does not involve the initiation of prosecution, the presentation of the state's case in court, or actions preparatory for these functions." In other words, press conferences aren't an integral part of the prosecutor's job; they are an extra function that he chooses to perform. Prosecutors could opt not to do any press conferences, if they so chose, and
still perform all the core duties of prosecution.

"Thus, there may indeed be a way for the defendants, if acquitted, to sue D.A. Nifong for malicious prosecution: They must hinge their claim on his statements at press conferences." Spilbor

The burden of proof (preponderance of evidence) required in the anticipated civil suit is notably less than the burden of proof required by the State Bar Disciplinary Hearing Commission (clear, cogent, and convincing evidence). It stands to reason that, if Defendant Nifong is found to have committed misconduct by the higher standards of the DHC, he is likely to be found liable by a civil court requiring a lower standard of proof. Irregardless of what determination is made by the DHC, the simple fact that the charges were referred by the Grievance Committee, after careful evaluation as well as equal consideration of Defendant Nifong’s required initial response, bodes well for the prospect of a successful civil suit against Nifong.

With Defendant Nifong facing these charges, which will likely take months to resolve, as well as additional charges certain to follow from the State Bar and eventual civil suits, it appears likely that da is destined to wear the Defendant moniker for quite some time.