Nifong's Ripples Reach General Assembly

With the egregious nature of Durham County District Attorney Mike Nifong’s prosecutorial misconduct now approaching universal acceptance, the effects have begun to spread like ripples across water. It has been predicted here, and elsewhere, that the effects of the Hoax have, or will, extend to future rape victims, race relations in Durham County and beyond, academia as a whole and Duke University specifically, the mainstream media, the blog-o-sphere, and elsewhere. A clear presentation of Nifong’s ripples, however, has already begun to emerge within at least one realm- the legal profession as a whole and the criminal justice system in particular.

Michael Nifong hijacked the Hoax on Friday, March 24, when he usurped the role of chief investigator from the Durham Police Department. On Monday, March 27, Nifong began the media blitz that would lead to the ethics charges he now faces. By March 30, his errant behavior led to his first rebuke from an attorney, and the State Bar would open a file on the ethics complaints.

“In the first weeks of the Duke lacrosse case, Durham District Attorney Mike Nifong continued to disparage lacrosse players in public after a defense attorney had put him on notice that he was violating ethical rules governing the conduct of lawyers.

"Your reported comments have greatly prejudiced any court proceedings that may arise," Joe Cheshire wrote on March 30, three days after Nifong began making public statements about the case.

"I do not understand why you will reportedly speak to the media in such certain, condemning terms before all the evidence is in, but you will not have the courtesy to meet or even speak with a representative of someone you have publicly condemned, despite your knowledge of the presumption of innocence and your position as an officer of the court bound by the Rules of Professional Conduct related to pre-trial publicity."

“Cheshire wrote in his letter that on March 29, he had his paralegal, Moira Bitzenhofer, call Nifong's office to set up a meeting so the defense lawyer could talk to the prosecutor either in person or on the phone. Nifong, through his assistant, Sheila Eason, declined to talk with Cheshire.

"You and I have known each other for a long time, and I do not mind telling you I was amazed at that response," Cheshire wrote.

"In 33 years, I have never seen such a request denied by a prosecutor, nor in such a manner. Your responsive comments, reported to Ms. Bitzenhofer by Ms. Eason verbatim, seemed to suggest I should call the Durham Police Department and have my client charged with a crime before you would have a conversation with me on a topic you have demonstrated no reluctance to discuss with myriad local and national news reporters over the last several days."

“Cheshire went on to list some of Nifong's comments, as reported by The New York Times, WRAL and The News & Observer.

“Cheshire said he didn't understand how Nifong could refuse to meet with a lawyer for one of the men the prosecutor had condemned in public. Nifong had essentially announced to the world that dozens of people were guilty of committing or aiding a racially motivated gang-rape, Cheshire wrote. And he wrongly proclaimed that the players wouldn't cooperate with police, when the truth was that three captains had voluntarily given interviews and their DNA to police, without consulting a lawyer.

"In addition to being patently false, your comments about the failure of anyone under suspicion to speak to law enforcement represent the type of negative comments on the exercise of Fifth Amendment rights that you would never be able to get away with in a courtroom."

“Cheshire concluded that Nifong had left him and other defense lawyers no choice but to defend their presumed innocent clients in the media:

"Sadly and unfortunately, that has created an atmosphere of trying these matters in the media, rather than a court of law, and that could have -- and should have -- been avoided." N&O

“In a statement, the bar said it opened a case against Nifong on March 30, a little more than two weeks after the party.” Wral

While it is uncertain whether Defendant Nifong was aware that the State Bar had already taken official notice of his misconduct, his response to the warning from Cheshire demonstrates the disdain with which he took this reprimand and the indifference with which he considered the State Bar’s ethical mandates.

“The day after receiving Cheshire's letter, Nifong appeared on MSNBC and demonstrated how the accuser had struggled to breathe while she was being choked during the alleged rape. He told The N&O he was certain a sexual assault had occurred at the house. And he continued to discuss the case as he campaigned to win the Democratic primary in the district attorney's race.” N&O

A recent article in the New York Times describes how far the Nifong induced ripples have traveled through the legal community from March until now.

"Not only did Mr. Nifong misjudge the bar, he misjudged the North Carolina Conference of District Attorneys. Back in September, the conference had sent Mr. Nifong a letter offering help with the case, including support staff, a shadow jury and advice on responding to defense leaks.

“We try to take care of our own,” Thomas J. Keith, one of four district attorneys who signed the letter, said in an interview this month. Mr. Keith recalled Mr. Nifong’s response: “Tom, thanks for the letter, but I don’t need any help right now.”

“As the public criticism of Mr. Nifong escalated, his fellow district attorneys began to hear rumblings that some state legislators were threatening to seek new oversight laws for all district attorneys. The DNA revelations on Dec. 15 only heightened their alarm.

"On Dec. 19, several district attorneys met with Mr. Nifong and advised him to hand the case to a special prosecutor.

“He had hoped they would stand together; instead they wanted him to pull out. Mr. Nifong was stunned.

“Any hope he had of regaining their support probably ended three days later, on Dec.
22, when Mr. Nifong dropped rape charges against all three defendants, though he continued to press other sex offense charges. Mr. Nifong said he had acted after the woman told his investigator she could not be certain she had been penetrated by a penis. Although he did not say so at the time, the woman also changed several other major aspects of her story during that interview, including that just two, not three, lacrosse players had taken part in the attack. The third, she said, had only stood by.

“Among his peers, the questions were obvious: Why had he not closely questioned his victim months earlier? How could he pursue a case with such divergent accounts from the key witness? Where was the proof?

“The state bar filed its complaint on Dec. 28. Better than anyone, the district attorneys understood its rarity and potential political significance.

“That is what pushed us into action,” Mr. Keith said. NYT

The unprecedented statement from the North Carolina Conference of District Attorneys revealed not only that Nifong had become a pariah among his peers, but also that the state’s elected district attorneys shared a concern that they would all suffer if Nifong’s ripples caused the General Assembly to enact stricter safeguards.

“There are a number of safeguards in place under our laws to regulate actions taken by a District Attorney as well as sanction prosecutorial misconduct. (1) The voter’s in a prosecutorial district provide the first safeguard - they pass judgment on the qualifications and conduct of the persons who seek the job by casting their votes at the ballot box. (2) Ultimately the courts in each jurisdiction review and rule on each individual case that a District Attorney prosecutes to determine whether the District Attorney has followed proper procedure and the case is legally sufficient. The District Attorney is an officer of the court. The courts have authority to impose various sanctions such as contempt or dismissal of the criminal charges if the court finds prosecutorial misconduct. (3) The North Carolina State Bar has the authority to enforce the rules of professional responsibility that govern all attorneys including prosecutors; there are a number of rules that uniquely apply to prosecutors. The State Bar determines whether or not a District Attorney has violated those rules and, if so, what sanctions are appropriate. (4) N.C.G.S 7A-66 sets forth the statutory procedure for removal of a District Attorney from office. Among the grounds for removal are willful misconduct in office and conduct prejudicial to the administration of justice which brings the office into disrepute. A judge of the Superior Court Rules on all issues presented in any sworn affidavit submitted in such removal proceedings. (5) District Attorneys are subject to the provision of the recently enacted State Ethics Act; complaints against a District Attorney that are lodged under the law are reviewed and acted upon by the Senior Resident Superior Court Judge in the District. With these many safeguards in place, the conduct of District Attorneys is thoroughly regulated probably more than that of any other judicial officer in our legal system.” WRAL

The inclusion of this painstaking outline of supposed safeguards in the NCCDA statement calling for Nifong to recuse himself, makes clear the aversion with which the group viewed additional state regulation, and their expectation that, without their unprecedented intervention, one Nifong ripple would likely lead to exactly that.

Considering the ineffectiveness of the safeguards they mention, it is no wonder that they had concerns the General Assembly might feel the need install additional checks on their power.

• Propelled by the support of an incredible 95% of black voters, no doubt manipulated by his inflammatory statements, Nifong used his misconduct to win the election. Rather than being a safeguard, the election provided a reward for his prosecutorial misconduct.
• Despite clear misrepresentations made to the court on multiple occasions, as well as other apparent misconduct, there has yet to be a single sanction from the court.
• At the time of the letter, there had yet to be any impact for his actions from the State Bar, and while Nifong has now recused himself, the falsely prosecuted young men remain charged with serious felonies, despite evidence of actual innocence.
• To date, there has been no known filing of a 7A-66 affidavit, despite the NCCDA’s clear and not so subtle attempt to public present the two exact charges, out of many, listed under 7A-66 that would apply to Nifong.
• Nor have there been any known complaints made under the new State Ethics Act.

Both Governor Easley and Attorney General Cooper publicly maintained that they were, under current state law, powerless to address Defendant Nifong's egregious behavior. Despite the transparency of his misconduct, Nifong has been allowed to continue his public exercise in injustice for nearly a year. It would appear that Mike Nifong has proven the five safeguards to be grossly inadequate.

With the proven ineffectiveness of the supposed safeguards and the rumblings coming from the General Assembly, it is no surprise that the NCCDA felt compelled to move against the worst of its own in the interests of forestalling additional legislation. State Representative Stephen LaRoque (R-Kinston) was the first member of the General Assembly to speak out against Nifong, calling for his resignation, as well as additional oversight of all NC district attorneys.

“The prosecutor seems to have put his own political aspirations ahead of justice for these three young men who appear to have been falsely accused,” LaRoque said.

“LaRoque contends that the N.C. Bar Association should not be the only entity with authority to punish incidents of legal misconduct.

“That’s like having the fox guard the hen house,” he said. Kinston Free Press

“I’m going to ask that Mike Nifong resign his position as district attorney, not just for the good of Durham County, but for the good of all North Carolina,” LaRoque said.

“This has become a universal issue and has put North Carolina in a bad light.”

"LaRoque, who represents the 10th House District, is calling for state legislators to enact a law allowing the state attorney general to investigate and criminally prosecute any district attorney who willingly commits prosecutorial misconduct.

“This is not just a state issue, but an issue that is important nationally and internationally,” he said.

“LaRoque says he is currently lobbying legislators to pass a tough law that will make district attorneys think twice before willingly committing prosecutorial misconduct.

“There are 170 legislators that have been silent on this issue,’ LaRoque said. “It’s time for someone to stand up and say there’s something wrong here. Something needs to be done to ensure the integrity of our judicial system.” Kinston Free Press

State Representative Nelson Dollar, from neighboring Wake County, soon joined LaRoque in noting the possibility of new legislation, although in slightly more reserved terms.

“It has certainly raised concerns with respect to how we do business here in North Carolina,” said Rep. Nelson Dollar (R-Wake).

“There's certainly no question that prosecutors in North Carolina have a great deal of latitude,” Rep. Dollar continued.

“The General Assembly could look at the latitude; look at the oversight that is exercised.”

“Rep. Dollar added, “When the General Assembly makes a law with respect to district attorney and prosecutions, it affects all of the prosecutorial districts so we have to look at the health of the systems as a whole."

“The representative says it's unfortunate that the Duke lacrosse case has come to this point, but if there are any flaws in the system, it's North Carolina's lawmakers who have to fix them.

“Rep. Dollar says legislators will most likely wait for the state bar's disciplinary commission to take action before moving on any new laws.” News14

Rep. John Blust (R-Greensboro) is the most recent state representative to suggest that reforms might be in order.

“Something I think we need to look at, is if someone can do to me or you what Nifong did to those Duke people, there’s got to be some consequence. I’m not sure what we might need to do yet, but I really think we might need to do that.” News-Record

Mark Binker of the Greensboro News-Record notes that the General Assembly has a history of responding to public outcry with reform legislation.

“And I’m beginning to get the sense that folks might want something other than the bar complaint that’s been filed.

“Might the General Assembly, which will come back on Jan. 24, get up to something?

“The legislature has been known to make laws in response to public outcry and a constant pounding in the news cycle. You need to look no further than the raft of ethics laws passed to quell public outrage over former House Speaker Jim Black to see that.

“What could the legislature do? I’m not a lawyer, and don’t claim to play one on tv, but one could well imagine them creating some mechanism (other than the court of public opinion) to go after someone for a reckless prosecution.” News-Record

From the comments of Dollar and Blust, new legislation may depend in part on two factors: the response of the State Bar and the volume of outrage from the media and the public. Considering the unprecedented move by the State Bar to bring ethics charges against District Attorney Nifong as he continued with the prosecution that was the source of the charges, the Bar seems well aware of the impetus placed upon it to demonstrate it can effectively clean its own house. While the filing of the first set of charges against Nifong is a step in the right direction, a second foot forward may come as early as next week, when the Bar’s Grievance Committee meets to consider additional charges.

“The Dec. 28 ethics charges are expected to be expanded when the state bar's grievance committee meets again Jan. 18. Like a grand jury, the committee meets periodically; the current ethics charges stem from its most recent meeting in October and cover public statements Nifong made about the case last March and April. At its next meeting, the committee will deal with revelations from a Dec. 15 court hearing in which the state's DNA expert admitted he and Nifong agreed to keep secret from the defense early DNA results showing no Duke lacrosse player could be implicated in an attack upon one of two exotic dancers hired for the March 14 house party.” Time

“The Grievance Committee of the State Bar is meeting later this week and may add more charges against Nifong, [Duke University Law Professor Thomas] Metzloff said.

“The most likely charges would concern Nifong's withholding of DNA evidence favorable to the defense, Metzloff said. The director of a private laboratory testified that he and Nifong agreed not to report that tests had found DNA from unidentified men in and on the accuser.

"It's likely, but not a sure thing," Metzloff said. "It's likely they might want the judge to start things off." N&O

A preliminary hearing for Defendant Nifong is scheduled for later this month, and his trial is set for May 11. (Trials before the Disciplinary Hearing Committee are generally open to the public.)

It’s difficult to imagine that the State Bar would not approach the Nifong Problem with the General Assembly and the prospect of additional legislation in mind. Does this implied threat offer an additional incentive for the Bar to deal with Defendant Nifong in a manner which clearly reflects an understanding of his egregious misconduct? Possibly. If so, it certainly doesn’t bode well that Nifong will be given the Bar's much-maligned Hoke or Honeycutt treatment.

While the actions of the State Bar are out of our control, the second factor noted as a motivator for the General Assembly is not. Turning up the volume on public outrage happens to be an in-house specialty at LieStoppers. For those who believe that reforms, whether aimed at bringing North Carolina’s grand jury system out of the Stone Age, or focused on ensuring that other innocents do not fall victim to a rogue prosecutor without a mechanism for state intervention, it would seem that the time is right to turn up the volume in the direction of the NC Legislature.

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