Friday, May 18, 2007

The Nifong Effect

Tresa Baldas of The National Law Journal has an article posted today at that indicates that Durham County District Attorney has brought disrepute not only to his office but to prosecutors nationwide.

Prosecutors Feeling Impact of 'Duke Effect'

New Jersey prosecutor Paul DeGroot knew it wouldn't take long for the Duke University lacrosse rape case to wreak havoc on prosecutors.

"It's becoming a tool and a buzz word for defense attorneys to say, 'Look what happened at Duke,'" DeGroot said.

He speaks from experience.

Shortly after the rape charges were dropped against the three lacrosse players -- and the prosecutor, Durham County, N.C., District Attorney Mike Nifong, was hit with ethics charges for allegedly withholding DNA evidence -- a defense lawyer in a recent drug case tried to use the Duke case against DeGroot.

"He said to the jury, 'We all know a prosecutor can indict a ham sandwich. Just look at what happened in that case down in Duke,'" recalled DeGroot, senior assistant prosecutor in Passaic County, N.J. "I objected as soon as that came out. And I made sure I added to say, 'In this county, we don't try cases like that.'"


Prosecutors across the country are seeing fallout from the Duke case, as defense attorneys use it to discredit other criminal cases and paint them as overzealous prosecutors with something to prove.

In Texas, one defense attorney recently cited the case during voir dire, and again in closing argument, in an assault case involving a teacher accused of pinning down a female student while other students beat her. The lawyer reminded jurors about what happened at Duke. The defendant was found not guilty in three minutes.

"Prosecutors should be worried," said defense attorney Edmund "Skip" Davis, the Texas attorney who cited the Duke case in the recent assault trial and plans to cite it in a rape trial next week.

In the teacher assault case, Davis asked jurors during voir dire if they were familiar with the "tragedy" that happened in the Duke case and whether they thought it was a shoddy investigation. At closing, he reminded jurors not to rush to judgement to avoid "that tragedy that nearly fell upon those kids at Duke."

"I told them, 'Just because someone hollers out that a crime has been committed just does not make it so,'" Davis said. "And the Duke case made a perfect example of that."

In Ohio, criminal defense attorney Ian Friedman of Ian N. Friedman & Associates in Cleveland said he plans to ask jurors during voir dire about the Duke case in an upcoming rape trial to see how they feel about false accusations and mishandled investigations.

"Everyone in my firm is well aware that this [Duke] example should be raised -- during voir dire, during closing arguments ... because this may cause a jury not to rush the judgment," Friedman said.

Friedman said that while defense lawyers for years have addressed wrongful convictions with jurors, the Duke case is a more powerful tool because so many people know about it. It put the presumption of innocence back on the radar screen, he said.



Prosecutors, meanwhile, believe that the Duke case is tarnishing their image, and could potentially hurt future cases.

"[That case] definitely is going to make it difficult for us, there's no question about it," said Joshua Marquis, district attorney in Clatsop County, Ore.


Marquis said that case, like the Duke case, sends a strong message to prosecutors: Strictly adhere to the rules of professional conduct and don't publicly talk about your case.

Click here to read the balance of Prosecutors Feeling Impact of 'Duke Effect'


Mandelbrot's Chaos said...

I can't say I'm surprised. My only shock is that the NCCDA is still wanting to overturn that which made this vindication possible.

Anonymous said...

Well they can look to Durham LE & Legal community for causing that reaction. For over a year this complete & utter travesty was supported by the local papers, politicans, and anyone who was too afraid to speak out against the bigotry aginst three white players.

It is a shameful event that will be quoted for decades.

Eric said...

Mandelbrot's Chaos:

I get the impression that they expected to slip their bill through based on the "it protects the privacy of social security numbers, etc." nonsense. Even the sponsors of the bill didn't seem to have noticed that the text of the bill does nothing to accomplish that, and a lot to overturn the need to let the defense see anything the prosecution would rather hide. This indicates to me that it could have slipped into law with none really the wiser. Now that the actual nature of the bill has become so public, I think it's less likely that it will become law in that dangerous form. It will likely be amended beyond recognition, or will die a quiet legislative death. I don't think some parts of NC still understand the level of scrutiny that Nifong has brought to the court systems in their state, or they would have waited a couple of years to try this stunt.

Anonymous said...

Simply put, better that 100 guilty men go free than 1 innocent man be convicted. Everyone deserves the presumption of innocence.

bill anderson said...

My sense is that the prosecutors are sorry that one of them was caught. After all, lying, withholding evidence, and suborning perjury are just another day at the office.

Anonymous said...

Carolyn says:

Excuse me? Because Nifong was caught lying and burying evidence to frame 3 innocent kids, I must feel sorry for the remaining DA's who are now forced to use the truth to convict someone?

Excuse me - are pigs flying?

Stephen said...

"Strictly adhere to the rules of professional conduct and don't publicly talk about your case" ----- don't they teach that like, say, in the first 15 minutes of Law 101?

Anonymous said...

Woo hoo! Can't wait to get my summons for jury duty! At voir dire, I'll simply say that the Nifong effect shows that NC prosecutors have no limitations imposed by law, and so I cannot in good conscience accept anything they put before me as "evidence." I will always vote to acquit.

Anonymous said...

More district attorneys should have spoken out sooner so Nifong's actions wouldn't have been a issue. The state of NC should have acted sooner to clear these men. All the judges in this case should have done something to Nifong before he asked to be removed from this case. And the papers and the media should have covered this harder so it would not have gone on so long. Everyone knew what was going on here. It isn't just Nifong's fault that his name is being used in other court cases.

Anonymous said...

Another shining moment for the old North State !

scott said...

Knowing that there was no way anyone could go back and determine what testimony was presented to the Grand Jury, Nifong, Gottlieb, et. al. knew they could lie about the evidence with impunity to secure an indictment.

How ridiculous is it that such an important event would not stipulate record keeping? Talk about a license to steal from the truth.

Until NC passes a law that requires Grand Juries to keep written transcripts of the proceedings, my position, if ever called for jury duty in a case where the defendant has been indicted by a GJ, would be to refer to GJs in NC as the star chambers they currently are.

Mandelbrot's Chaos said...

Eric, I'm actually hoping that some honorable members of the North Carolina legislature, taking a huge leap of faith and assuming there are any, will work to STRENGTHEN the laws to protect the accused and the penalties against those like Nifong. Ideally, I would love to see reciprocity, namely, that those who knowingly withhold exculpatory evidence be sentenced to the same prison term they attempted to get for their victims, but that's not going to happen. Still, make it hurt.