Tuesday, December 05, 2006

Nifong on Defense

In an article this weekend, the News and Observer details some of the many complaints filed against District Attorney Mike Nifong and his public attempts to begin his defense against those complaints.
“Public record requests to the governor and attorney general uncovered at least 17 complaints concerning Durham District Attorney Mike Nifong to the N.C. State Bar, which licenses and regulates lawyers. The complaints accuse Nifong of saying too much to the news media and of mishandling the investigation.”

“Nifong would not discuss the bar complaints, but in court, in news releases and at news conferences, he has mounted a defense, sometimes using language tailored to the bar rules.”
In particular, the N&O notes that many of the complaints against DA Nifong address violations of State Bar ethics rules 3.6 and 3.8 as they relate to extrajudicial statements.
“The bar's rules limit what lawyers can say to the media. Lawyers cannot say things likely to prejudice a case, especially a criminal case. The rules caution lawyers to be careful when discussing the character or credibility of a suspect, a person's failure or refusal to make a statement, or any opinion about a suspect's guilt or innocence. And the rules say prosecutors must refrain from comments that would heighten public condemnation of the accused.”

“In March, Nifong called the players at the party "a bunch of hooligans" and said a racially motivated rape had occurred. He said the players weren't cooperating with police, and he questioned why they would hire lawyers. "I'm not going to allow Durham's view in the minds of the world to be a bunch of lacrosse players at Duke raping a black girl from Durham," Nifong said at a forum televised live April 12.”
With regard to the defense of his numerous inflammatory and extrajudicial statements, the N&O notes a few specific examples.
“At a July news conference, Nifong referred to bar rules that allow a prosecutor to inform the public that an investigation is in progress and to encourage cooperation from witnesses. But in a June e-mail message to a Newsweek reporter, Nifong explained his statements a different way.
"My initial cooperation with the press was based not on any perceived political advantage to be had, but on my (in retrospect, admittedly naive) belief that such cooperation would help effectuate a more accurate public discourse on an issue with great societal resonance," Nifong wrote.

“Nifong has also tried to change the perception of how many interviews he gave. During March and April, Nifong told reporters that he gave more than 50 interviews consuming 40 hours during the last week of March. Six months later, Nifong amended those numbers, telling Superior Court Judge W. Osmond Smith III that his appointment book showed 15 to 20 interviews."
In August, we noted that his defense against the pending charges had begun when Washington Post columnist Andrew Cohen falsely accused the defense attorneys of committing the violations that Nifong stands formally accused of.
“Equally outrageous is the more devious deception created by not addressing Mr. Nifong’s extra judicial statements. We are absolutely amazed that any discussion of rule 3.6 and the Duke case would pretend to ignore Mr. Nifong’s role in this part of the drama. Mr. Cohen’s discussion remains woefully incomplete and deceptive by means of this omission."

“One might expect that the Post would be more concerned with seeking confirmation of the exact number of 3.6 AND 3.8 complaints filed with the North Carolina State Bar in regard to Mr. Nifong, the exact number of those complaints against Mr. Nifong that are currently being investigated and the faulty rationale behind Mr. Nifong’s defense of some of those complaints by attempting to make a distinction between pre and post indictment. While Mr. Cohen asks, "What will Titus do?" We prefer to ask, "What is the State Bar doing?"
It should be noted that in the same press release mentioned by the N&O, DA Nifong emboldens part of the following statement:

“…my initial comments on the situation before there was a case against any identified defendant which would trigger the ethical rules resulted in my being accused of unethical behavior…”

Bizarrely, Nifong attempted to invent a non-existent distinction between pre and post indictment as if he was not bound by ethics rules until some invisible line had been crossed. Comment [5]-(4) of Rule 3.6 clearly demonstrates that there is no intended distinction between a prosecutors ethical responsibilities to defendants and suspects.
[5] There are, on the other hand, certain subjects that are more likely than not to have a material prejudicial effect on a proceeding, particularly when they refer to a civil matter triable to a jury, a criminal matter, or any other proceeding that could result in incarceration. These subjects relate to:

(4) any opinion as to the guilt or innocence of a defendant or suspect in a criminal case or proceeding that could result in incarceration;


Durham Lawyer said...

Mr. Nifong's claim that his intial comments about the case were okay because he hadn't identified a particular defendant has always been strained. At the time he made his initial statements, he did know the names of the people he was going to indict: They were three of the individuals whose names appeared on the Duke Lacrosse Team roster. He just may have not figured out which three he was going to indict.

If Mr. Nifong's interpretation of the rule holds, then he has created a gret new tool for prosecutors. Once you've narrowed down your suspect list to a few people, go out and trash those persons' reputations in the press, and once you've created sufficient community hostility, indict one or two (or three) of the people on your list, and then piously lean back and say it would be unethical to say anything else about the case becuase it might jeopardize the defendants' right to a fair trial.

Durham Lawyer

bill anderson said...

This case has the potential for a great deal of precedent, all of it bad. First, the post above says that a prosecutor is able to go after a group of people first, and then pick and choose someone to indict, while having poisoned the jury pool.

Second, as I have pointed out elsewhere, feminists are following this case closely because they want to have a legal atmosphere in which exculpatory evidence does not matter. Once a woman makes a rape accusation, that is it. If there is a trial, it is aking to a Stalinist Show Trial, not anything fit for a decent court of law.

Now, Nifong is not intelligent enough to be trying to push feminist law. He just wants to win, and he sees this case as the ultimate challenge.

The feminists at Duke and elsewhere, however, fully understand that if they can get a wrongful conviction here, then no one is safe at any time from being accused of rape and thrown into prison. These people play hardball, and they do not worry about the truth. In fact, they openly say that the only truth is power, and political power at that.

Victim in Massachusetts said...

bill your correct. The feminists really don't care about justice they just want attention. They don't care about the people they hurt just like Nifong.

This is all a game to everyone with an agenda. If Nifong does get a guilty verdict no man will be safe ever again, no matter the color of his skin, not even his own son.

Durham had better open its eyes and see what they are going to do to the rest of the country.

After this case is done it will allow women to go cry rape, and you won't even need any evidence to prove the case and there will be no way to stop it.

I don't believe this case based on the evidence released so far and what has come right out of the mouth of the D.A. pure and simple.

Anonymous said...

Which is the better career option for the Fong, drop the case or charge ahead ? It's really hard to tell. Either way, career over.

Anonymous said...

The next hearing is 12/15. I don't expect much because it's NC. However, I expect the trial to begin in the spring and I can't wait to see how Nifungus gets out of this. I think that's one of the more interesting aspects...what will he do?

Anonymous said...

The Femininsts are sickening. As a women myself I don't understand how they could not care about innocent lives they are using for their own agenda. They are against rape... what do you think they are doing to these falsely accused? They are raping them of their lives. They are raping their families of their sons and brothers. What a twisted, hateful group. Nifong on the other hand is pure evil and has known from day one how he was going to play this out. This judge better do something to stop Nifong on Dec 15th or their will be white pot bangers demanding justice for the falsely accused in Wasington on the steps of the Senate and House.

Anonymous said...

To 10:41,
Actually Nifong could probably save his career if he played the 'righteous public servant' role and asked the Governor to appoint another prosecutor, "even though he believes he has a good case." If the new prosecutor determines to continue the case then Nifong is redeemed. If the new prosecutor makes a decision to drop the case, then Nifong can claim the new guy did not have the intestinal fortitude to follow through, but if its over--its over and out of his hands.

Nifong can't get in trouble with the black community, because after all he can claim that he was not the one who dropped the case. To all those crying 'foul' he can say "look I turned this over as you demanded" and that may just get him a reprieve there as well. He might get some Bar complaints, but as we've seen those would be mere slaps on the wrist.

I really believe that if Nifong took the right step here just before Christmas/Holiday season and these thing played out, he could salvage his career.

Anonymous said...

While he may be able to salvage his career, I think that his fortune might be in jeopardy with the civil cases to come.

Anonymous said...

Bill, I have read ever word you have written on this case and other topics and, I generally find you right on the mark. I will, however, take issue with your use of the word "feminists" to describe the women that are supporting the perpetuation of this hoax. By calling these females "feminists" - you are doing a disservice to those women (just by way of example) who paved the way for the Duke womens' lax coach to have her job.

These females are not "feminists", they are agenda driven publicity hounds who need to take someone down (it could be white lax players, it could be stay-at-home moms) to feel better about themselves.

Carry on!


Anonymous said...

All of your bad mouthing Mike Nifong is pointless. You can't get these criminals off. They must pay for their crime. They should have obeyed the rules and kept their nose clean. Mike Nifong is doing the job that he was elected to do. This case is moving forward and will be determined by a judge and jury.

Maybe you should talk with the duke 3 about their bad behavior. Now, the bad behavior is coming back to bite them in the ***. You are being blind-sided and fooled every day by these spoiled unraised brats.

The old saying is....If you make your bed.....

Anonymous said...


dare to be stupid

Anonymous said...


"They must pay for their crime. .. This case is moving forward and will be determined by a judge and jury."

I bet you're not the best looking troll on the block, and you're certainly not the most clever. .. And by the way, what old saying starts with.."If you make your bed" ??

Anonymous said...

To 10:40,


Anonymous said...

To 10:40-
Guilty of what crime? Underage drinking?
Have you ever jay-walked? We better get the pot bangers after you!