Monday, November 06, 2006

Volokh on Nifong

The web’s best site for informed legal commentary is Volokh Conspiracy, run by UCLA law professor Eugene Volokh with contributions from 15 other high-powered law professors from around the country. I read the site every day.

Volokh recently posted an item admitting he hasn’t followed the lacrosse case closely, but was troubled by the revelation that Nifong had sought charges without ever speaking to the accuser. The post triggered a number of thoughtful replies from current and former prosecutors, providing a glimpse of how some of the better minds in the legal profession view the district attorney’s conduct.

I should note that all of these remarks occurred before Nifong’s stunning claim, first reported Saturday by Benjamin Niolet in the N&O: “If a case is of such significance that people in the community are divided or up in arms over the existence of that case, then that in and of itself is an indication that a case needs to be tried.” [emphasis added]


I prosecuted a number of rape cases and other sex crimes. It would be inconceivable not to have met with an adult rape victim early on, usually with a victim assistance person present, to go through the details of what had happened. Then, you would meet a couple of times prior to trial to go through what she could expect at trial, on direct and cross. This goes double for a case where the victim has given obviously conflicting statements which are contained in the police reports . . .

In this case either a number of the cops have screwed up, or this woman has told a large number of different and diametrically opposed stories to almost everyone she talked to. You bet I would go through all of those inconsistent statements with her. A prosecutor needs to know what she said and why she said it, and also to prepare her for cross, because you can bet the defense will be asking her.

I have been skeptical of Nifong’s behavior from the beginning (if his pre-indictment comments didn’t violate the rules of professional conduct pertaining to pretrial publicity, then they just need to be repealed because they mean nothing). Maybe that colors my thoughts here too—I suspect that he doesn’t want to meet with her because any story she tells could be inconsistent with what she’s said before and therefore become Brady material. In my opinion that’s lazy, counterproductive, sneaky, and disgraceful. I think that he will create more problems for himself doing it this way. I think he has tried to take the easy way out every chance he’s gotten.


I’ve been a prosecutor for 31 years. The police do investigate, but the prosecutor makes the charging decision, and at least here (Wayne County, including Detroit) it would be unheard of to make the charging decision in a serious assaultive case, particularly a case of this sort, without interviewing the complainant (other than a homicide, of course). I’ve never heard of such a thing.


I know from conversations with prosecutor friends that in case like this they don’t just interview the lead witness, they get to know them pretty well. While lunching with one prosecutor, she pointed out another group—two prosecutors were lunching with the victim-witness in a rape case.

This is not just a felony case, but probably the highest-profile case in his office in years. From what I understand, there’s no forensic evidence, no confessions, no police who witnessed the event.

He’s not spoken with the key witness?

Is going to walk into court without a clue as to whether she sounds resolute or evasive? Whether she’s got some subject that makes her blow up or become intimidated, so that he knows to avoid those and try to block defense efforts to go there? How do you know whether a case is winnable without those data?


I have a lot of experience investigating rape cases. I did two child rapes last week. This case stunk from the beginning. It smelled of politics then, it REALLY smells of politics now.

Given the PUBLIC comments that the prosecutor made about his conviction that the offenders had committed the crime, and his trust in the truth of the victim, it is inconceivable to me (especially considering the mountains of exculpatory evidence presented on behalf of the defense) that the prosecutor has yet to at least witness a police interview with the “victim”, let alone speak to her himself. In my jurisdiction, prosecutors have to be very careful about actually interviewing victims themselves, because they can’t be both witnesses and prosecutors.

This case (on the prosecution’s side) is a joke. I really really detest rapists, and that is why I took a lot of specialized training in rape investigation, so I could investigate these types of crimes thoroughly, and this case (the prosecutor) has been insane from the beginning . . .

The most damning aspect is the lineup procedures. They were COMPLETELY 100% against standard police procedure, and I can’t imagine any police officer I know using such a ridiculous identification procedure after the fact to identify suspects. JUST based on the ridiculous photo lineup procedures, I would think this case should be thrown out.

Again, it is not that unusual, in the ‘average trial’ for the prosecutor not to have interviewed the victim much, if at all, prior to trial. But given his public statements, his rush to judgment, his dismissal of defense-friendly evidence, etc. etc. it’s just another example of a ridiculous prosecutor caught up in desire to please feminists (many of whom are finally coming around to this absurd witch hunt), and to play the race card.


OK, it has been nearly 30 years since I did my short stint as a prosecutor. But, I am still perplexed at how this matter was handled.
As I understand it, the duty of the prosecutor is to do justice, prosecuting crimes being the principle means to that end. One cannot ascertain just how justice will be served unless and until one has the facts in hand. A prosecutor doing his or her duty would have the complainant interviewed—repeatedly, if necessary—and get to the bottom of the matter. If the allegations hold up, then he or she can assess how justice would be served by prosecution. If the allegations collapse under investigation, then justice admits of only one course: dismissal.

Avoiding the facts and leaving innocent people hanging out is, in my view, a disgraceful abdication of duty.


Given the rapidly-changing stories coming from a “victim” in a case where the prosecutor is pinning all his career hopes, Nifong may simply be taking a partial page from the defense side, by avoiding getting answers from his “client” until shortly before trial.

That way, he can get from her responses that match the most current-to-trial known information, and not worry about which iteration of future disclosures (from anyone) are going to contradict what she tells him.

Face it. This guy sees the need to defend his own actions in the future. He’s in better shape if he, personally, can say “she told me this, she never changed her story to me, and that’s the information I went to trial with.” If he had been speaking to her for months, and her story had changed and contradictory information had come out (as it has), and then he simply decided to use the “best” (for him) story at trial, he’d have a much more uncomfortable afternoon or two before the bar authorities.

Granted, he still faces that burden through the police interviews, but I think he’s more personally insulated if there’s no prior Nifong interview.


I cannot tell you the number of times I have seen law enforcement—police officers and prosecutors alike—express disappointment when their theory of the case crumbles. It’s rather unsettling when some cop or prosecutor expresses disappointment because a witness fails to identify the suspect, because a search doesn’t produce evidence of the suspect’s guilt, because evidence surfaces pointing to the guilt of someone other than the suspect, and so on. It’s almost as if they have suffered a personal loss, even a personal affront. They are saying to the suspect, in effect, “It’s too bad it looks like you didn’t do it. How unfortunate.” My reaction, unspoken, is “Well, screw you, too.”

This kind of law enforcement attitude merely offends one’s sensibilities. Far more damaging are those instances in which law enforcement settles on a theory of the case very early on and refuses to budge from it no matter what. My experience has been that in cases presenting this sort of prosecutorial fixation, there is some kind of political motivation improperly influencing the investigation and prosecution of the case.

That certainly appears to be true in the Duke lacrosse team case.


It is truly surprising that Nifong did not interview the witness regarding the facts prior to seeking an indictment in this case. As a prosecutor, I rarely rely only on agent’s reports of what key witnesses say—I bring them in for an interview. After all, charging someone with a serious crime is crushing to the family of the defendant . . . This case sounds like it is going down hill for the prosecutor.


I’ve been a prosecutor in Michigan for almost 32 years (I briefed and argued the Hudson v. Michigan “knock and announce” case this year) and I was astounded to read that not only had the charges here been brought without the DA’s Office interviewing the alleged victim, but that she has yet to be interviewed by the DA’s office. One doesn’t bring charges in assaultive cases, especially of the sort here, without first interviewing the alleged victim. I’ve simply never heard of such a thing.


If the AP report is true, and the quotes from Nifong are accurate, that is just breathtaking incompetence. It is unethical to indict a case—not talking mere arrest here, but indictment, which is a much weightier step—unless a prosecutor is personally convinced that a rational jury would find a defendant guilty beyond a reasonable doubt at trial based on the facts that are known at the time of indictment. How can you indict a he-said-she-said case without first satisfying yourself about what she would actually say?

Nifong is not a social worker, he’s the prosecutor. It’s not his job to inform himself about how the witness is doing. Of course, as a human being and as someone who has to work with a witness, you always ask such questions. But the prosecutor’s principal task is to get the witness’s testimony and evaluate it against other known evidence. Indictment can ruin lives. You don’t do it unless you’re confident you’ve got the goods.


It isn’t about not “liking” Nifong and few have argued Nifong doesn’t know what he is doing. To the contrary, the arguments have largely been that he knows all too well what he’s doing. Incidents like the photo line-ups, kowtowing to decidedly PC and political forces despite contrary evidence are microcosms, are reflections of the fact that Nifong knows what he’s doing rather well. Lawyerly dissimulations, recommendations of Nifong’s bona fides, etc. notwithstanding.

It’s not about crucifying Nifong, it’s about properly weighting the flood of evidence which not only fails to support the allegations but which additionally and decidedly run contrary to that evidence.


Some prosecutors are aggressive. Some are lazy. Some are both depending on the day. Some are able to find that balance between laziness and stupid aggression.

Some prosecutors care about playing by the rules and making society safer. Some think only about the next office they want to run for.

Nifong seems like a political climber who vacillates between laziness and stupid aggression.

The trick for the defendants’ lawyers will be how to convince Nifong that his career will be less damaged if he dismisses all charges.


The thread contained only one poster (of several dozen) that defended Nifong’s tactics; a couple of others expressed general pro-prosecutor sentiments but admitted unfamiliarity with the facts of the case.

The overwhelming consensus among the national legal community about Nifong’s misconduct raises the question of why the State Bar has allowed him to proceed as far as he has.

One poster wondered, “What does a prosecutor profit when he gains the world but loses his soul in exchange?”

Nifong must ask himself this question every morning.


Anonymous said...

Another informative post, KC. When will the bar association get off the couch and act? Why does the attorney general remain silent? Why won't the governor use his bully pulpit? What do Durham officials and police have to hide? Just how deep is the corruption in the city?

Sundayjack said...

That's just a great running dialogue.

Anonymous said...

This post is really helpful to those of us who aren't attorneys. I've been wondering if I just don't have the training needed. I was confused when Nifong said no prosecurtor would be stupid enough to interview the accuser. It just made common sense to me to interview the accuser especially since her testimony will probably be the only real evidence.

Anonymous said...

Asley Cannon says she made a sex harass complaint to nifong and he ignored it.

Anonymous said...

Another fine article, but it seems to me you should consider the possibility that Nifong has in fact interviewed the accuser and is simply lying about it so that he won't become a witness in the case.

As I'm sure you are aware, Nifong claimed to the Court that he had only one substantive discussion with the accuser, in which he asked if she'd used Ecstasy and she said "no." As I recall, the defense attorneys stated that Nifong's claim "strained credulity," and as an attorney, I concur. If you believe that, then I've got a bridge between Kings County and lower Manhattan you may be interested in purchasing.

Just my humble opinion.


The Dude said...

Iskinner at 5:39

Nifong has a continuing duty to provide discoverable material. He can not lie about an accuser's statement. He must turn it over ASAP. If he took any statements or made an inquiries before June 2006 that should(and MUST) have been turned over in discovery. That is the law.
Nifong has interviewed the accuser too many times. He just won't admit it. That is why she can never be cross examined. Nifong knows that and is just praying for something to happen in his favor.
Maybe the dancer will be killed in a pole dancing incident and he can be the families civil lawyer.

Anonymous said...

This is an excellent post. I have two thoughts about Nifong:
1) Nifong has not interviewed the AV for very good reasons--he cannot afford to "know" that her stories have changed, or that she lacks credibility.
2)To quote Shakespeare.."me thinks thou doest protest too much..." Nifong has made it a point, repeatedly, to tell us that he is not a politician. Clearly he is, as one of the legal experts pointed out. His steps in this case have been very carefully orchestrated to protect himself, the case, and his political ambitions. Everything he did (or did not do) in April and May was well thought out. By personally taking over the investigation, NO ONE had to interview the AV, because HE had to walk the fine line between investigator and prosecutor--he could not be part of an interview because he could then be called as a witness to her changing stories. This allowed him to protect his office, the lie and the case....

Anonymous said...

KC: very interesting and helpful post, particularly for a non-lawyer as I am. I urge all to go to the Volokh blog cited in today's posting as I just did.
To dude at 732, I can only surmise that Nifong has a 2fold problem. Let me put it in the form of a multiple choice test. Sort of like the line up. Here is the test.
Select the best answer. There is insufficient discoverable material relating to Nifong's discussions with the AV due to: (a) Nifong is ethically challenged; (b) Nifong is grossly incompentent; (c) both of the above.

Anonymous said...

Matbe 12.12 would be interested that the governor is a graduate of the UNCC law school and also his wife,an attorney, teaches there.

sceptical said...

There have been rumors that the NC Bar will act on Nifong's antics after the election, but the most I expect would be a slap on the wrist, such as a letter of reprimand.

Anonymous said...

As a prosecutor with 15 years' experience, I agree with the many Volokh posters who've said that there's no way a prosecutor should charge a case without personally interviewing the complaining witness. There's only one reason I can think of why any attorney, regardless of which side they're on, would want to proceed in such fashion, and it's the same reason many defense lawyers wait until the eve of trial to really interview their clients: they don't want to know what the witness' story is because subsequently discovered facts might mean that it needs to change.

Anonymous said...

Hello, this is anonymous in Durham. I believe the Governor and AG are not involved at this point because they hope, that we, the good people of Durham, will take care of the problem tomorrow. I will be doing my part! I am driving to Chapel Hill to pick up a voter from UNC, then by Duke to pick up another voter, and then to the polls to cast our vote for Cheek.