Nifong's Old Cases Questioned

"This matter appears to be an aberration in a couple of respects. It appears to be an aberration in the life and career of Michael Nifong. It appears also to be an aberration in the way justice is handled in North Carolina. It’s an illustration of the fact that character — good character — is not a constant. Character is dependent upon the situation. Probably any one of us could be faced with a situation at some point that would test our good character and we would prove wanting. And that has happened to Mike Nifong. But the fact that it has happened and the fact that we have found dishonesty and deceitful conduct requires us in the interest of protection of the public to enter the most severe sanction that we can enter, which is disbarment."- DHC Chair F. Lane Williamson

In announcing the unanimous decision to disbar former Durham County District Attorney Mike Nifong, Disciplinary Hearing Commission Chair F. Lane Williamson indicated that he believed the misconduct of the defrocked attorney was an "aberration." Williamson's remarks painted the picture of Mr. Nifong as an honest prosecutor led astray by political ambition. For many observers, Williamson's characterization has been difficult to accept. Given the extreme and persistent misconduct that led to Nifong's disbarment, it is not surprising that pundits are now calling for investigations into the humiliated ex-prosecutor's old cases.

In "Disdained, Disgraced, and Disbarred: Mike Nifong May Be Gone, But The Damage Done By Durham's Dirty Prosecutor Will Live On", Jonna Spilbor of Find Law writes:

Nifong May Have Committed Misconduct in Other Cases Too

Interestingly, Nifong served as an Assistant D.A. in the controversial murder prosecution of novelist Michael Petersen - another Duke graduate. (Petersen's trial is chronicled in the documentary "The Staircase.") The investigation began in 2001, and ended with a conviction in 2003. Did Nifong learn his dirty tactics then -- or earlier? Did he use his dirty tactics then - or earlier?

The misconduct revealed in the Duke lacrosse case merits an investigation into Nifong's past prosecutions, as well. Nifong would have happily sent three completely innocent young men to jail in the Duke lacrosse case. Did he happily do the same to other innocent people in the past?

Today, Aaron Beard of the Associated Press reports that anticipation of inquiries into past misconduct is shared by Nifong's replacement, Durham County District Attorney Jim Hardin; the Judge that suspended Mr. Nifong after he attempted to delay his resignation, Orlando Hudson; and the North Carolina Innocence Inquiry Commission, a State review board headed by Kendra Montgomery-Blinn, who testified to the integrity and character of Mr. Nifong at his DHC trial.

The official assessment of Mike Nifong's handling of the Duke lacrosse case - "intentional prosecutorial misconduct" - clearly could not have been more harsh.

What's not yet clear: Will Nifong's misdeeds in his last case as a prosecutor give defense attorneys an easy path to overturn his nearly three decades of work in the Durham County district attorney's office?

"I don't think the fact that he was shown to be so unethical in the Duke lacrosse case will mean that other cases he's prosecuted will automatically be reversed or appealed," said Steve Cron, a defense lawyer from Santa Monica, California, who has practiced for 33 years.

"But his behavior in this case was so outrageous and so beyond what's required of an ethical prosecutor that everyone's going to start going back and looking."

...

While Hardin plans to be in place for no more than few months, both he and the permanent district attorney Easley appoints later could soon find themselves in a courtroom defending Nifong's work in other cases.

"There will be people who might challenge some other cases," Hudson said. "I don't know how many cases are out there potentially. I would expect that based on these hearings there will be inmates who challenge their convictions."

Nifong has a long history in Durham to sort through. He joined the county prosecutor's office as a volunteer in 1978 after graduating from law school at the nearby University of North Carolina at Chapel Hill. He eventually worked his way up to be Hardin's chief assistant before being diagnosed with prostate cancer in 1999.

Nifong stopped trying cases to undergo surgery, radiation and hormone therapy before returning and handling traffic court at Hardin's request. That limited the number of criminal cases he tried in recent years, which means any review of that work would be close to a decade old. Without question, the biggest case of his career involved the Duke lacrosse team.

"I personally doubt (a review) will find anything at this stage because the cases are too old and that's not the reputation he had before," said Stan Goldman, who teaches criminal law and procedure at Loyola Law School in Los Angeles. "But I think lawyers are going to file motions. It'll clog the courts for a while. Maybe they'll find something. I tend to think it's unlikely, but who knows?"

Longtime Durham lawyer Butch Williams, who represented an unindicted lacrosse player last year, said he had never before questioned Nifong's judgment. He predicted only a handful of attorneys will feel the need to go back and review their old cases files.

"I've known Mike for 28 years and I think this case is an aberration more so than the norm," Williams said. "I don't think there's going to be any mass rush to the courthouse to go back and review because that was not the norm. ... To come back now and say, 'I didn't know this or that,' it would be mighty hard to get a review unless there are substantive issues."

The recently created North Carolina Innocence Inquiry Commission, which is designed to investigate claims of actual innocence in past cases, does not expect an avalanche of filings involving Nifong's past work. But commission chairman Superior Court Judge Quentin T. Sumner said through a spokesman the panel will look at inquiries from Durham on a case-by-case basis.

Carl Tobias, a professor at the University of Richmond law school, said any review of Nifong's past work might serve another purpose. Nifong's actions, which the disciplinary committee concluded were designed to help him win his first election as district attorney, hurt the reputation of the Durham's criminal justice system - something a review could help remedy, even if nothing comes out of it.

"People are within their rights and it's legitimate to inquire," Tobias said. "For a lot of people, there's a sense that on one big case he made a lot of mistakes. That doesn't mean he did before, but I think people need to find out so it does satisfy them."

Although new again DA Hardin has attempted to portray the Nifong/Mangum Hoax as "ancient history," it would appear that his efforts to ignore the recently exposed, and admitted, egregious misconduct of his handpicked successor will fail as the Nifong Effect promises to continue to impact his office for the foreseeable future.