Monday, March 19, 2007

The Bar's Devastating Response to Nifong

The N&O has posted the Bar’s response to Mike Nifong’s memorandum of law to dismiss some of the ethics complaint against him. It astutely describes the Nifong memorandum as asking the Bar “to undertake statutory construction, interpretation of case law, and semantic hair-splitting.”

A basic summary.

1.) Nifong’s defense appears geared more toward possible criminal allegations than to answering the Bar’s complaint that he violated the Rules of Professional Conduct.

In its response, the Bar notes that Rule 3.8 requires a prosecutor to disclose all evidence in a timely fashion, and that “a prosecutor’s compliance or non-compliance with statute, constitutional provision, or court order is not determinative of whether disclosure under former Rule 3.8 was ‘timely.’” In other words, Nifong’s memorandum is attempting to prove that the DA didn’t violate the Constitution when he entered into an agreement with Dr. Meehan to withhold exculpatory evidence. Yet he doesn’t even try to address the question of whether his behavior violated the Bar’s rules.

Indeed, the Bar contends that Nifong’s conduct regarding the DNA evidence (along with the arguments presented in his defense) violate the “plain language” of North Carolina law. Under the statute, the Bar’s response observes, “the issue is not whether a defendant is able to surmise—from a massive amount of raw data—whether the expert uncovered potentially exculpatory evidence, but whether a report of the results’ was furnished to the defendant by the State.”

2.) A report is a report.

The Bar’s response dismissed Nifong’s absurd argument that in handing over—months after the fact and under court order—the underlying data from Dr. Meehan’s DNA tests, he was complying with a statutory requirement to hand over a report on all tests performed by expert witnesses of the state.

3.) Nifong’s no-trial rule makes no sense.

The response also dismisses Nifong’s “proposed bright-line rule” that because no trial date had been set, he didn’t have to turn over the exculpatory evidence. As the Bar notes, “This argument conflates the issue of whether a constitutional violation occurred with the issue of whether such a violation is grounds for reversal of a conviction.” Nothing in the Rules of Professional Conduct suggest that the rules kick in only once a judge sets a trial date.

4.) Nifong fails his own constitutional test.

In a devastating passage, the Bar notes that Nifong misread a Supreme Court decision—United States v. Argurs—that figured prominently in his memorandum. In Argurs, the Bar noted, “the U.S. Supreme Court carefully distinguished between situations in which the defendant makes either a generic request for exculpatory matter or no request at all, and instances “in which specific information has been requested by the defense,” and that “when the prosecutor receives a specific and relevant request, the failure to make any response is seldom, if ever, excusable.” In this case, of course, the defendants repeatedly requested the DNA material, Nifong repeatedly denied that any more test results existed. Nifong, therefore, violated with Argurs test—the very test his own memorandum had proposed—and with it, violated the Constitution.

5.) Lying to the court ought not be rewarded.

The Bar takes strong issue with Nifong’s argument that because both Judge Stephens and Judge Smith didn’t order him to memorialize his conversations with Dr. Meehan, neither he nor any other law enforcement official had to do so. “It is worth noting,” the response correctly recalls, “that the content of each Order was based on Nifong’s misrepresentations to the Court as alleged in the Amended Complaint. Therefore, Nifong is effectively arguing that he can make false statements to a court which result in the entry of an order, and then use the order that is based on his misrepresentations to claim he committed no discovery violation.” Such an approach would undermine the system of justice.

Nifong, in short, is arguing that his “successful deception of the Court” immunized him from any future ethics charges for his having lied to the Court in the first place.

6.) Nifong is still violating the law.

As the Bar’s response points out, North Carolina law “is unambiguous: Anyone subject to an NTO must be given any report of test results as soon as such a report is available.” Yet as of today, Nifong has never provided the relevant information to the 43 unindicted players, and he certainly didn’t provide it to the three indicted players as soon as the information was available.

In devastating fashion, the Bar concludes that Nifong wants the Disciplinary Hearings Commission to conclude “that it violates none of the Rules of Professional Conduct for him to:

(1) discuss and be keenly aware of potentially exculpatory DNA test results and direct or agree that those results would not be contained in a report provided to indicted defendants and other named suspects, and

(2) successfully and repeatedly deceive courts into entering orders finding falsely that he had had no previous discussions about these potentially exculpatory DNA test results, because . . .

. . . over five months later and pursuant to a court order to compel, he ultimately provided the defendants almost 2,000 pages of underlying data without any report. In essence Defendant argues that, court orders and very specific discovery requests notwithstanding, he had absolute discretion to withhold potentially exculpatory information of which he was fully aware until some unspecified time prior to trial without violating the Rules of Professional Conduct. Defendant’s contention that he was under no obligation to provide the information because no trial date was set necessarily implies that he was also entitled to withhold and never disclose potentially exculpatory information in any case that settled prior to trial. These precepts, if accepted, would apply not only to Defendant but to all other prosecutors and must be rejected.

Unanswerable.

98 comments:

Anonymous said...

Say "goodnight" defendant Nifong!! I almost feel bad for him, considering that he probably isn't any better equipped to be the Wal-Mart greeter than he is to being a lawyer.

Anonymous said...

Put a fork in Nifong.

It's just a question if it will be just disbarrment, and/or criminal penalties, and how much the civil penalties will amount to.

I just wonder how it could of got this bad.

Incompetence/arrogance and a police chief on permanent vacation?

Anonymous said...

Watch for Nifong to find new lawyers. Apparently an affirmatively chosen defense team doesn't impress the North Carolina Bar.

Anonymous said...

The Fong's goose is cooked. It is amazing, but right now it seems like justice will be dealt out to Fong BEFORE the accused see justice in their cases. Reminds me of:
The "fifth dimension beyond that which is known to man. It is a dimension as vast as space and as timeless as infinity. It is the middle ground between light and shadow, between science and superstition, and it lies between the pit of man's fears and the summit of his knowledge. This is the dimension of imagination. It is an area which we call 'The Twilight Zone.'"
Definitely where Nifong has chosen to reside.

Anonymous said...

Oh man, is that a brutal document. Nifong is dead meat. He might as well crawl into a hole and pull the hole in after him.

jamill hussein said...

I'm surprised about the bar. My initial thoughts were that the bar is part of the corrupt NC system and it would make everything in its power to whitewash Nifong. I think it was mentioned that the governor (who appointed Nifong) gets to appoint one member in the 3 person panel who decides Nifong's fate.

Anyway, looks like Nifong will eventually get what he deserves. At least I hope that criminal charges will be brought against him.

Does anybody know how the criminal charges against Nifong would be indicted and by who?
I'm not sure if bar can initiate it.

Anonymous said...

That's gonna leave a mark.

Anonymous said...

I'm not a lawyer.

Do the defendants have a civil option in this case? Can they sue the State since DA Nifong was acting as an officer of the State?

If so on what grounds, and how difficult of a case would it be.

Thanks

Anonymous said...

Is there a chance that Nifong will be criminally charged?

Lawyers?

Anonymous said...

Sanity. At long last, sanity.

Anonymous said...

In what seems poetic justice,the Bar's response was filed on a Friday, the same day old Fong is famed for using to post news releases. K.C. Johnson should be elevated to Blog Hero,as he is a cut above Blog Hooligan with his months of very informative postings.Thank you sir!

gak said...

My faith in the system is now recovering

Anonymous said...

Buh-bye, Mikey, we hardly knew ye...

Of course, what we did know turned our stomachs, so maybe it's all for the best. Time for a beer and a quick backyard pee, perhaps...

Anonymous said...

I noticed the stress put upon Nifong's violation of the defendants' civil rights. Too bad we don't have a U.S. Department of Justice to enforce the federal laws that Nifong violated. Maybe if we arranged to make Nifong a U.S. Border Patrolman......

Anonymous said...

The speed of this response is telling. They must have worked all weekend. $$$ The judges he misled don't come off looking too good. I would feel foolish if I was one of them. :)

Allen said...

If Nifong is disbarred how would that affect his civil liability. If his misconduct, specifically wrt not turning over evidence in a timely manner, is so gross his license is revoked and the three Duke defendents can show that such actions caused an increase in legal bills can they atleast hold Nifong or Durham responsible for that.

I haven't followed much about possible suits the defendents might have after the case. From what I have read it sounds as if Nifong is pretty much untouchable. I'm wondering if possible actions by the bar can change that.

Anonymous said...

The Bar seems to have made it very clear that they are not going to be fooled by Nifongese language--good for them. It must be obvious to this pathetic DA that he is not going to keep his job much longer--we can only hope that criminal charges will be filed as well!!

duke2009mom

Anonymous said...

http://www.newsobserver.com/content/media/2007/3/19/Brief%20In%20Opposition%20To%20Motion%20To%20Dismiss.pdf

The Bar motion is devastating-- read it in all its detail.

Anonymous said...

As a trial lawyer, when I read Nifong's motion to dismiss, it made me wonder just who is paying for Nifong's lawyers. My guess is that the tab is being picked up by the state.

A motion to dismiss is an optional motion, meaning that it is not a required filing. To win a motion to dismiss, the party submitting it has to show that there is no basis, in fact or law, for the claims stated against him/her in the complaint. (For purposes of the motion, all facts alleged in the complaint are assumed to be true). A competent and ethical lawyer will not file a motion to dismiss when there is no chance of success; doing so wastes time and judicial resources, and unnecessarily runs up the client's bill.

The arguments in Nifong's motion to dismiss were specious, in my opinion. So why would his attorneys choose to file such a motion? For PR purposes? To test some arguments Nifong may be planning to use if he is criminally charged? Or were these lawyers just running up the State's bill? (My guess would be the latter).

Anonymous said...

To 4:21,
Good thing you said 'almost'. His actions have dealt a serious blow to how people in the U.S. now view a lack of trust within our justice system. Maybe when he pays back--in full--the $3 million in legal fees to the falsely accused will I have some compassion.

Anonymous said...

Since one poster refers to TV dialog, here's another: the Bar's response to Mr. Nifong is "Slapdown."
gk

Anonymous said...

While we all rightfully point out Nifong's deliberate attempts to hide the exculpatory evidence let us not forgot the watchdog of our system, Judge Stephens! The State Bar is entering this case because we didn’t have a Judge watching out for the rights of the three players.

Nifong clearly was framing three guys for something he knew 10 April was false. However the inspector was Judge Stephens. Either he is incompetent to sit on the bench or he was a willing coconspirator.

Nifong is a boob, what does that make Judge Stephens?

Anonymous said...

Time for the G88 to ride to the rescue, though probably can't read the opinion.

The G88 must be very proud.

Anonymous said...

I concur, the Bar needs to look at Judge Stephens, he was incompetent.

I am sure the lawyers will come up with a way to go after Nifong both in civil and criminal court. His goose is cooked, he will never practice law again. Public trust is a fragile thing, to use it for ones personal gain is really despicable.

BDay

Anonymous said...

True, the judges in this case also should be held accountable for their lax attitude towards the defendents Constitutional rights. They allowed Nifong to lie in court, they gave him way to much leeway to manuever all his little schemes, witness intimidation, evidence tapering, covering up exculpatory evidence, instructing police to go agains their own policies ...... Judge are the watchdog of the law and should put an attorney or DA in its place when they have crossed the line.

Anonymous said...

Jamill: criminal charges against Nifong can be initiated by the State of North Carolina (for violations of state law), and/or by the U.S. (for violations of federal law).

The NC state bar does not have the legal authority to initiate any type of criminal charges against Nifong.

Anonymous said...

Nickel bet: does he eat it while the civil rights suits are going down, or is he such a coward we'll get to see him whimpering in the orange jumpsuit?

P. Rich said...

Outstanding. Nifong is toast, no huge surprise there, but the case grinds on. And now? Why hasn't the case been thrown out already given what the State knows, based on the Nifong investigation, about its prior improper handling?

Anonymous said...

Is Nifong receiving advancements/indemnification from the state to pay for his defense? This is going to get expensive. And to what extent can he claim sovereign immunity in future civil and criminal actions? I assume it depends on his level of culpability. This would be very interesting to look into as his self-created mess proceeds.

Keep up the outstanding coverage.

Anonymous said...

Goodbye Nifong; hello lawsuits.

Bakerman said...

Re: "Nifong is a boob, what does that make Judge Stephens?"

Another well paid member of the same extra-legal club - of which Mr. Nifong was a re-election functionary.

The NC Bar was forced to state the obvious just to be re-taken seriously, to exculpate complicity - as if they never heard of member Nifong in such a context before. Now the search is on for a minimal remedy, based on a feigned lack of [serious] jurisdiction. Kind of a bait and switch - exactly.

Exhibit A: NC Grand Juries - no notes, no transcripts, no justice. Just drag'em in and hang'em.

Anonymous said...

Liefong should only begin to feel the pain and anguish that the team and their families have suffered...for a YEAR because of his deliberate actions. I do believe that the 'judges' should also be looked into!!!
There is a Duke Lacrosse God afterall!!!

Duke Lax Mom AND SO VERY PROUD OF IT!!!

John Kaiser said...

If this wasn't so appalling and detestable I would be laughing right now.

Anonymous said...

@ 5:23

I doubt the criminal justice system could work at all if judges had to operate under the assumption that DA's lie to them.

As has been pointed out many times on this site, Nifong was supposed to be a "minister of justice."

No doubt some DAs do lie, but it is primarily up to the defense to demonstrate it (just as they did here.) I think the Bar got it right: the judicial orders were issued on the basis of misrepresentation, and any fault for that lies with the misrepresenter, namely the well beloved Nifong.

JeffM

Anonymous said...

I have raised this query about the judge here myself before. I even addressed it directly in a message to Professor Johnson, which he never answered. (Despite frequently--and rightly--complaining that Nifong supporters, journalists, etc often don't reply to his messages.) I don't understand how the judge could have stood by and let this get so out-of-hand. Do US judges not have more discretion than that? Surely this report is an indictment of the entire system, including the judges involved. The election of court officials is also something worth reconsidering. Not a very impressive system for ensuring justice.

Anonymous said...

The arguement that the LAX players were not harmed by not giving them all of DNA evidence before trial ignores that fact that the DNA exhonerates them. The very evidence he withheld is the evidence that should have prevented a trial.

Anonymous said...

Carolyn says:

I just finished reading the entire DHC brief and I can't believe it! Nifong is so stupid that the case he uses to prove he didn't break the law (U.S. v. Argurs) is the very case that proves he did!

I almost started laughing. Until I realized that the reason Nifong broke that law was in order to imprison three innocent young men for a rape that never happened.

Anonymous said...

To JeffM;
I agree, with one exception, the illegal gag order was clearly a buddy system order, there was no grounds for it, and any reasonable judge would not have granted it.

BDay

Anonymous said...

Defending the judges - NC judges have limited authority to dismiss, etc. I'm so tired of people who have no idea what the law is assuming the judges involved have anything to do with this mess. If they did, don't you think the defense attorneys of the players would have said something by now. Civil liability against Nifong, even with the ethicial violations, will be very difficult, and criminal charges are incredibly unlikely. In fact, the Grand Jury of Durham County would have to be the ones to indict. And just so everyone knows, I'm a NC Prosecutor. I have a suggestion for everyone - read NCGS 15A-1 and following. Then read the NC Bar Handbook. Once you have done that, while you continue to agree that Nifong was wrong, it will accurately describe what he did, and what he didn't do. It will also describe what the Bar can and cannot do. And speaking as an NC prosecutor, the Bar is upset as much at Nifong as at the times they have not been able to attack prosecutors in the past. To the person who commented that this will be resolved sooner than the criminal charges themselves, that's because the Bar violated its own statute of limitations in a previous attempted prosecutorial misconduct investigation, and they still can't get the prosecutors to this day, criminally or ethically. In fact, quite frankly, but for the national attention this case received, I'm not sure the Bar would have investigated. Of course, the media attention itself begs the question of whether we would be here at all. I'm not saying the Nifong has any excuses for his behavior, but if it hadn't been Duke, I doubt we'd even know about the case, much less be debating it a year later.

Anonymous said...

I posted months ago that my "Bar Buddy" said they were PISSED.

This reply should make everyone feel much better. It is obvious they ARE PISSED.

I think I could see the smoke coming out of their ears as they wrote this reply.

This reply also GUARANTEES Federal action. A state Bar accuses a DA of violating the US Constitution. After they disbar Mikey, he'll get his perp walk!

Rae was right "he's going to regret this the rest of his life"

No pension in prison.

Kemp

Anonymous said...

Now, what's going to happen to Duke and the Group of 88? I sincerely hope they pay a price beyond mere bad publicity. Soak them for millions and maybe, just maybe, the systematic lack of political diversity in such institutions will be taken seriously.

Anonymous said...

It is indeed very good news that Mike Nifong might be understanding right now how he must pay for what he's done.

Unfortunately, many other players are still unwilling to give justice its due.

I received this letter from Steve Ford of the News and Observer this evening saying that they cannot print my column. Here is his response:

"Debrah,

I understand your dismay with the situation at Duke, which you have well conveyed in your piece. Unfortunately, though, I concur with my colleagues here that the piece is not one we'll be able to use. Perhaps if (or when) the players are fully exonerated, not just in the court of public opinion but in the legal system itself, it would be more appropriate to vent this kind of anger at the parties who, in your view, have let them down........"

Blah....blah...blah......

Well, at least Steve Ford had the guts to sent a long e-mail and went to considerable trouble trying to explain the rules set up by his paper....which are designed never to criticize a certain segment of society.....no matter the level of criminality they possess.

McClatchey must be proud. It's their direct MO.

I am very dismayed after receiving this message. I was sure that publisher Orage Quarles (who is black) would allow the other side to be printed.

One just can't tell the truth about the Gang of 88 and Richard Brodhead. Even after all the unprofessional reporting done by the N&O in the beginning that was so damaging.

Astonishing, that.

Debrah

Anonymous said...

Most of us answer questions to each other or research the information our selves. KC has never been big on answering question. Bill A...has been very helpful with explanation and answers. I am not about to criticize KC for not answereing direct inqueries. He is a volunteer in this show.

madder than a hornet said...

fong is finally receiving what he deserves. It is a bittersweet day. Thank you NC Bar, we are grateful that you understand the gross prosecutorial misconduct.

I find myself once again focusing on Brodhead and Steel. They were complicit in this horrible travesty of justice and yet they just can't find the humility to say "I AM SO SORRY BECAUSE WE SCREWED UP. We sold our students up the river of injustice for the souls of the Gang of 88."

Nifong was the first bad actor, Brodhead/Steel are next in the revenge drive.

Watch us, don't mess with lax moms

Humboldtblue said...

"I have raised this query about the judge here myself before. I even addressed it directly in a message to Professor Johnson, which he never answered. (Despite frequently--and rightly--complaining that Nifong supporters, journalists, etc often don't reply to his messages.)"

KC runs a blog regarding the Duke hoax, why is he held responsible for answering questions about the NC state bar process or a judge's conduct?

Seems to me your question is better directed at the numerous attorneys who have commented on this case rather than a history professor who lives on Brooklyn.

jim2 said...

I had wondered at the Nifong "Motion to Dismiss" once I saw how well and easily it was thoroughly debunked here and elsewhere. It seemed to me that Nifong had really done nothing more than provide the State Bar with a free chance to expand upon their original complaint.

Did he so terribly misjudge the State Bar? But having seen their original complaint document, how could he not foresee this? Is he really that inept? That bad a judge of a legal situation? Was his "Motion to Dismiss" his idea? Or just his lawyers?

Nifong did not merely make an inadequate "Motion", but he literally provided additional evidence of guilt while letting the State Bar illustrate quite publicly that Nifong tried to put one over on the Court.

Anonymous said...

Stick a fork in him, he's done....

Anonymous said...

I smell (Nifong's) blood in the water. It would appear that the tide is turning...

Anonymous said...

In response to some recent posts that state that the judges in the case can only rule according to what they are told by the DA and they must assume that he/she is truthful: there were instances where the defense made specific requests that the judges granted. When Nifong thumbed his nose at the legal system by not providing the requested material, the judges had a responsibility to rebuke him. They did not. One such instance is the destruction of 911 tapes despite defense's request for them to be preserved. Another is the full report of DNA testing done in Meehan's lab.
It is my opinion that the judges were enabling his malpractice by looking the other way and not enforcing their own rulings.

Anonymous said...

I hope the Three sue Durham for ONE BILLION DOLLARS.

(With apologies to Dr. Evil.)

Anonymous said...

To 7:16pm
You must be Nifongs lawyer, again trying to explain away his complicity in this mess.

Nifong's hat trick said...

All of Nifong's dancing around the issue does not dismiss the fact that he EXCLUDED evidence that was crucial to the defense of the LAX players.
Nifong went out of his way several times to make sure that the defendants DID NOT receive the report on this DNA evidence. Why?

When Nifong says "no trial date was set", is he admitting this was all a game and that this wasn't really heading for trial? If he's not admitting that, then the next likely step would be to set a trial date and everything he did preceding that certainly compromised a fair trial for the defendants.

In denying there was a Brady violation, Nifong is admitting that the favorable evidence was provided in time for the defendant to make effective use of it.

That brings things full circle! That's the whole reason Nifong refused to provide the evidence in the first place! Nifong knew that the findings of DNA from 5-7 other men was favorable evidence and that the defendants could make effective use of that evidence!

Anonymous said...

7:16 says:


Of course, the media attention itself begs the question of whether we would be here at all. I'm not saying the Nifong has any excuses for his behavior, but if it hadn't been Duke, I doubt we'd even know about the case, much less be debating it a year later.


Are you suggesting that it would have been OK if there was no media attention?

Are you suggesting that the media should look the other way when prosecutors are misbehaving?

Anonymous said...

It is obvious now that the Fong put off a trial date (still none.) It is hard to believe he had that much forthought and probably fell into this. I can only hope Gonzales gets his for the DOJ inaction.
9:04 -Think you are absolutly correct and well put.
I don't believe a Durham jury will ever grant money to the families in a civil suit.
Any way of getting a censure for Stephens, Titus and Smith. Guess not with Hudson.

Anonymous said...

Hard to believe that 7:16 is indeed an NC prosecutor (or maybe not). He/she has the parochial view that criminal and civil charges would have to pass through the Durham "Justice" system.

There is a whole other world out there, NC prosecutor. It's called the Federal Court system, and even if the DOJ doesn't have the inclination to press criminal charges, diversity and damage- amount criteria make it certain that civil suits can proceed at the federal level. Nifong lost absolute immunity the moment he became investigator.

It could be precisely this small-town parochialism that lead Nifong to assume absolute immunity, regardless of how egregious his actions were. What is frightening is that he almost succeeded.

Anonymous said...

If it is true, that Nifong will truly stop working our city over, then that would be about the only positive thing I can see coming out of this sordid affair. Shining some light on the MSM and the angry studies is good, but they will go on as before, perhaps with fewer true believers.

Anonymous said...

7:49pm--

I entirely agree. Brodhead IS Duke University. Yet he has slithered through this mess relatively unscathed so far. I too see him as one of the chief villains of the piece. He sound be forced out. He should have led a chorus of calls for the presumption of innocence at the outset, when the crusade against these players got underway. THat is his job and why he is so well paid. Instead, he prevaricated... at best. Even on the 60 minutes interview, he was hedging and prevaricating. A good opportunity for him to retire.

Anonymous said...

7:50pm--My minor rebuke to the good professor (whom I admire very much for his valiant work here) was for double standards on the matter of replying to emails. It seems perfectly reasonable to me that he did not have time to reply to my specific question. But then the same reasoning may apply to others who have not replied to him. Professor Johnson is nothing if not a reasonable man. I think he might grant that point to me, as it is so much outweighed by his many virtues which no one here would dispute for one second, least of all me.

Anonymous said...

Before anyone starts celebrating, let's wait and see what happens next. If this case has taught us anything, it is that anything is possible. I'll take the champagne out of the fridge when he's formally disbarred. And even then I won't pop the cork...

hman said...

To 7:16 (The NC Prosecutor).
You said that a civil action against Nifong?Durham would be difficult. I am not an attorney but I get the impression that the Bars rebuke explicitly describes the actions of the DA as violating the civil rights of the accused. Is that not grounds for a lawsuit in Federal Court against the law enfocement officials who conspired to deny those rights?
Thanx for your input.

Anonymous said...

7:16:

you're probably right that Nifong wouldn't be callled to account had there not been so much media attention, but so what? I don't think any reasonable person can look at what he's done and agree that he hasn't completely abused his office. And if it took an unusual case to bring it to light--so be it. And keep in mind that Nifong fanned the flames. Imagine how different this whole thing would have been if he had simply said, "We're going to treat this case like all others and critically evaluate the evidence." Nifong is lying in his own bed. The Lacrosse Three are not, and while 3 people having their lives seriously messed with may not be a big deal to you, Mr. Prosecutor, it is to most people, and it should be a cautionary tale. How would you like it if someone did this stuff to your kids?

The other issue is the judges. Now I may not be any expert on how things work in NC, but typically, judges have a lot of power to deal with monkey business in their courtrooms.

As for the Bar, maybe they want to make an example of Nifong. So what? Nifong wasn't above board with his prosecution of these guys, so sauce for the goose . . . . the right to practice law is a privilege, and one that should not be abused. That you seem to bemoan the rough justice Nifong is just starting to taste sounds like inside baseball whining. These Duke players were made an example of--where were you when that was happening (and by the way, any serious prosecutor had to know, after a cursory review of the stories in this case, that the gang rape allegations were BS--white on black gangrape just doesn't happen in this country--couple that with the changing stories, the bogus IDs, you had to know that this was BS--even the cops in the beginning thought so) So where were you. Now you whine about the 'Fong being made an example of . . . .

Pathetic, Mr. Prosecutor. Pathethic.

Anonymous said...

Don't forget the sneers, sighing, snide remarks, laughing. shaking head that went on if front of these judges - with no censure. Thank God for tv and at lease Titus and Stephens recorded forever. Dead man walking " did not impress them either. The Judges are a disgracem including the potted plant. Does the NC DA know that no motions by the defense have been ruled on for twelve months? If the bar is so p^^^^^, how come the charges have not been dismissed. Please don't tell me the bar has no influence in the AGs office.

bill anderson said...

And speaking as an NC prosecutor, the Bar is upset as much at Nifong as at the times they have not been able to attack prosecutors in the past. To the person who commented that this will be resolved sooner than the criminal charges themselves, that's because the Bar violated its own statute of limitations in a previous attempted prosecutorial misconduct investigation, and they still can't get the prosecutors to this day, criminally or ethically. In fact, quite frankly, but for the national attention this case received, I'm not sure the Bar would have investigated. Of course, the media attention itself begs the question of whether we would be here at all. I'm not saying the Nifong has any excuses for his behavior, but if it hadn't been Duke, I doubt we'd even know about the case, much less be debating it a year later.

Mar 19, 2007 7:16:00 PM



First, I am not surprised that a North Carolina prosecutor would post anonymously. Second, it hardly surprises me that the prosecutor seems to be defending Nifong, albeit in a backhanded way.

North Carolina, Mr. Prosecutor, is the state that gave us Alan Gell, Darryl Hunt, and the Little Rascals. That hardly is a record that should give you and your colleagues any pride. Prosecutors in North Carolina for years have been permitted to lie, break the law, and throw innocent people into prison -- and try to kill them, as your profession did Gell -- and then try to say that you did nothing wrong.

Please do not try to defend Nifong at this hour. Please admit that you and your colleagues for years have been ethically challenged, and have gotten away with crimes that smack of the privilege you give yourselves.

I truly am disgusted by your post, and have come to realize that prosecutors in the State of North Carolina are a law unto themselves. I guess it is impossible to shame liars and criminals, and that is exactly what you North Carolina prosecutors are. From Nifong to Ashley Cannon, you are a bunch of liars and cheats. I truly despise all of you.

Anonymous said...

It is completely untrue that the judge could not have dismissed this case. Ofcourse his decision would be appealable but he could have easily done it.

Anonymous said...

We are here and debating a year later because a gang of 88 professors wrote a statement that made KC Johnson mad. This case is changing the face of America, racism, rape and so much more. I do not have the ability to make this argument,but Big Bill A..does.

Anonymous said...

On page 2 of the Bar's response=
"On April 10 2006 Nifong met with Dr. Bryan Meehan....."
So much for Nifongs selective amnesia of April 10.
All Hoax enablers aboard the tar coated boat on the flaming river Styx!

Anonymous said...

Sounds like Nifong is going to experience BOHICA, courtesy of a few families. What is BOHICA, you ask:

Bend
Over
Here
It
Comes
Again

The power of the pimp hand...

Anonymous said...

Sweetmick asks why the NC Bar has come down so hard on Nifong. The Bar is angry; they are out for blood. But why, since they have long had a reputation for turning a blind eye to DA malfeasance. The only explanation is that the heroic work of KC, Liestoppers, Stuart Taylor, JinC, Johnsville and others have exposed this hoax to the entire country. They have been indefatigable, day after day, analyzing, researching, providing more info than the MSM cared or wanted to. All the info. They shined that spotlight right on the NC Bar, and in effect asked the Bar if they had no shame if they ignored Nifong's behavior. KC and company made the NC Bar blink. Goodbye Nifong.

Anonymous said...

9:41 PM

You are making a fundamental error. Brodhead is NOT Duke University. That is precisely why so many in the Duke community feel betrayed by his actions.

Duke '91

KC Johnson said...

Re my policy on replying to e-mails: I get to as many as I can, and usually if it's a factual question where the answer can be found elsewhere, I feel less pressured to reply, especially if it's a hectic day.

On people replying/not replying to my e-mails: I send the e-mails from common courtesy--basically, if I'm going to criticize someone, it seems reasonable to give them a chance to reply. A few times, I've done so, people have replied, and I've reconsidered my opinion. But when people don't reply, I try to put the line into my post not to indicate my anger but simply so readers know that I did give the person a chance to respond.

Anonymous said...

7:14: "...the judges involved have [nothing] to do with this mess. If they did, don't you think the defense attorneys of the players would have said something by now."

wellll...actually, I can very easily imagine the defense attorneys believing that certain judges had quite a bit to do with enabling this mess, yet not saying it. Nothing to gain -- and potentially a lot to lose -- from stirring that up now, right? This preposterous, rotting dog of a "case" is still twitching, after all. Incredibly, Durham still has a greater-than-zero chance of dragging the LAX players in front of one of those paragons of judicial probity.

Let us content ourselves with waiting to see what is believed about the judges after the dog is finally declared dead.

Anonymous said...

JLS says....

re: anon 5:15 Nifong has requested the bar pay his legal expenses. For now they are his and I expect they will remain his responsibility.

re: all who debated the situation of the Judges Sorry but I can not get over Stephens who found out in the course of this case while still the judge that Nifong lied to him to get him to issue the nontestimonial order, NTO, did not seem to care one way or the other. Somehow I think here even in backwards AL, if a Judge found out during a case that I had lied in court to him to get a ruling, the judge would take notice and at least yell at me if not hold me in contempt. But then I am a mere economist not a protected member of the legal community.

re: anon 7:16 Are you claiming that the Special Procution section in the AGs office could not file charges against Nifong? If so then, that would not be the Durham County DA would it? Also couldn't the DA who replaces Nifong also charge him? Does this mean you are NOT an NC DA or does this mean that you ARE an NC DA with the same hauty attitude about you being above the law that got Nifong in this mess?

Anonymous said...

If the judges couldn't dismiss the case, they certainly could have heard a motion or two. The motion to throw out the line up, which is the only evidence took months to schedule. A strong judge could have prevented a lot of this nonsense.

Cedarford said...

KC Johnson is modest, but we are not about his excellent analysis!

If you look back to KC's past comments made immediately after Nifong's response to the Amended Bar complaint, he was pretty much dead on - on how the Bar would react to the petition for dismissal of charges.

Sure enough, not one motion of dismissal on any count was granted, and the reason why was spelled out in clear statements that the evidence shows Nifong (1)Repeatedly lied to Courts and is relying on the excuse of Orders only created by his successful deception of the Courts. (2)Willfully conspired to with hold evidence in a way not excused by any NC Statute, Bar rule, OR The US Costitution.

He is so toast.

I especially loved the conclusion. Contrary to what his last core of defenders say (Wendy Murphy and the sad idiots of the NC NAACP inflamed with hatred for men or white people) - the notion that evidence can be with held as long as it "doesn't affect THE TRIAL!!" is insane. The Bar points out Nifong is effectively saying (and NAACP dolts endorsing) that the Prosecutor is not required to turn over all evidence, especially exculpatory evidence, from counsel to any defendent he is in the process of threatening maximum jail if a case goes to trial rather than accept conviction and jail on a lesser count in a plea bargain. That completely perverts justice. Naturally the Bar rejected that reasoning by a guy who is only a few months away from having to one-line out the "attorney" part of DA Mike Nifong, Attorney - on his business card. Then one-line out "DA". Then hopefully just chuck the business cards. You don't need them in jail. Usually, just announcing to "Tiny" Mustafa that Ibrahim Leroy Tubman traded him for a carton of cigarettes is enough introduction to satisfy business.

Anonymous said...

How would the bar have an influence over the AG office?
The case is obviously not over, and who knows what AG is going to do?

scott said...

9:45 PM --

You, sir, are an ass. Prof. Johnson doesn't need me to stick up for him, but I'm going to anyway.

To make even the first remark about Prof. Johnson not answering your question could be construed as simply whining. But to come back and try to justify it in a second comment is assinine.

You are comparing apples and oranges. You asked a question about a legal point, something that Prof. Johnson is not an expert in and to answer would likely have to consult a third party before responding. How much time do you think he has to devote to this project? It is, after all, not his primary job. Why didn't you get off your butt and find out yourself if you wanted an answer.

As to Prof. Johnson mentioning that people (e.g., members of the G88) did not respond to his emails, my guess is that he was emailing to provide them an opportunity to clarify THEIR remarks. They didn't have to go off and do any research because the topic at hand was something about which they had first-hand knowledge -- THEIR remarks. They could have responded "off the cuff" so to speak. All Prof. Johnson was doing by remarking that they didn't respond to his emails was to let his readers know that he gave his target a chance to clarify the situation as an attempt to balance what he was writing in pointing out the absurdities of THEIR remarks. It is enlightening that not one of them ever responded. I'd like to think it's because they know THEIR remarks are absurd, but I know their egos are too big to ever come to that conclusion.

Apples ... Oranges. Think about it.

Anonymous said...

Scott at 12.28--

You were right at the outset: Professor Johnson doesn't need you to defend him. Much ado about nothing. Think about that.

Anonymous said...

Duke '91 at 9.41--

To the world outside of Duke's insular micro-culture, Brodhead IS DUKE. That's what was meant. THat's why he should resign. What else I've seen of Duke (almost entirely via this issue) makes me think that Brodhead is now rather more representative of Duke than many of their graduates, alas.

Anonymous said...

11.59--

I heartily agree with your caution. The ethics committee of the bar is not the same as the AG office, just as law is not the same as politiics. Much remains to be seen. Too much premature jubilation on here, I fear.

Anonymous said...

Thanks to the magic of cam cords, all this is preserved on tape - ready for replay. titus and Stephens were shocking in their attitude and hostitly to the defense lawyers. I am retire and watch a lot of trials on Courtv - Both of them were disgraceful. Nifong just thrived on their comments. This certainly contributed to his "swollen ego and head."

becket03 said...

I get a kick out of 7:16. Defends the judges, trashes the bar, tries to say as much good about Nifong as he can, condescends to those who don't understand the law at his level of expertise, scoffs at the media coverage, moans that he has to address a mere rape case a full year later, implies that we're only talking about it because rich white kids at an elite university are involved, and never mentions justice.

Yep, as he proudly proclaims, he's an "NC prosecutor" alright.

beckett

Anonymous said...

Delta Dawn - Original Words and Music by Alex Harvey and Larry Collins

CHORUS
Mike Nifong, what's that flower you have on?
Could it be a faded rose from days gone by?
And did I hear you say
Group 88 was a-meetin' you here today
To take you to their mansion in the sky-eye?

He's seventy-one and his wife still calls him "baby"
All the folks 'round Durham say he's crazy
'cause he walks downtown in his bathrobe with a plan
Lookin' for a mysterious mustached man

In his younger days they called him "The Nifong"
Most arrogant DA you ever laid eyes on
Then a gal of low degree stood by his side
Promised him she'd never never lied

CHORUS
CHORUS
CHORUS
CHORUS

Anonymous said...

It is pretty clear from Bar response that Nifong intended to knowingly incarcerate 3 innocent persons for, perhaps, 20 years.

Is that a crime? If so is it as serious as Murder in First Degree?

Brian in Connecticut said...

To NC prosecutor at 7:21 -- I believe if criminal charges come against Nifong they will be at the federal level, and be taken out of the hands of a Durham County grand jury. Although I don't have much faith in the Bush Justice Department and Albert Gonzales (if he's even there them).

To a larger point about the justice system -- I imagine I am like many people who will have observed this case. A year ago, I would've said that prosecutors are ethical, police are diligent and fair in their investigations, and that the idea of them conspiring to frame innocent people when they know no crime was committed was unthinkable.

I no longer believe that.

Anonymous said...

Well said 10:16:

"We are here and debating a year later because a gang of 88 professors wrote a statement that made KC Johnson mad. This case is changing the face of America, racism, rape and so much more."

Anonymous said...

7:16

Well, it is possible that you are a NC prosecutor, but you must practice in Transylvania County(yes, we have one in NC) and not get out much. I have posted here several times that the Middle District US AG has already opened a file on Nifungu, she did so in May, 06. This information comes from a "New" federal judge, who was a US AG, if your from NC you can figure that out, if your not then you won't have a clue. Well, you "could" Google new federal judges in NC to see who this is, if you wanted to.

Mikey WILL get DISBARRED. I use to think it was 50-50 the feds would act, now 90-10. They can NOT ignore the Bar reply, it is public. They will have to act.

Kemp

Anonymous said...

Ouch. Devasting is right.

As a non lawyer I was worried that the idea that because he ultimately provided the exculpatory material prior to trial he might be able to wiggle out on a technicality, while this might save him from criminal prosecution it clearly isn't going to help him with the NC bar.

How great is it they remind Nifong that the underlying data he FINALLY turned over in response to the court order was done over his own OBJECTION!! Too funny.

It seems they have him dead to rights. Maybe his motion for dismissal was a last chance hope that if he gave the bar some technical, arcane basis for dropping some of the allegations they would go for it.

Looks like he was dead wrong. I love the fact they repeatedly and clearly accuse him of straight up lying to the court, which of course he did.

You really have to wonder what he was thinking this whole time, I guess he thought he might be able to bluff his way through a trial. As it stands, he was able to stall delivery of the exculpatory material long enough that the truth didn't come out until well after his election. What a POS this guy is.

cobraxus said...

Can they sue the State since DA Nifong was acting as an officer of the State?
Good question.There are 2 possible arguments:First,Nifong was the DA of Durham and therefore was acting in a position of authority thus making Durham and NC culpable.The other side could be that since the bar determined he was acting outside legal statutes(rogue DA)then Durham and NC can't be held accountable for his actions.

Anonymous said...

Yeah, I would think the rogue DA would apply unless some evidence can be found that other people colluded with Nifong to break the law and/or that this was SOP in Durham.

The DPD will probably get off by arguing they did what Nifong told them to do and figured it was all lawful.

Anonymous said...

To follow up on the rogue question.

Lets say youre a white police officer and you work in a black department. You are up for a promotion. To display your lack of racism you decide to shoot 3 white boys for jaywalking....and then throw down a "smoking gun" saying it was from the biys you just shot.

Clearly you are a rogue cop. If youre nefarious scheme is uncovered at a later date...are you implying the police department would not face liability due to you acting outside of department guidelines?

Anonymous said...

It is true that KC does not need anyone to defend him. None the less, we are very protective of KC - very positive feeling and respect for him. I was an Rn working stiff for fifty years. Thanks to Kc, Bill A.. and the rest (Professor Tom gives me a laugh every day)I am getting an college education in my old age.

Anonymous said...

I said from the beginning that Nifong had a giant brain f^^^.

Anonymous said...

Nifong wanted to be elected. Gas bubbles in his brain have no bearing on how he acted in this case.

I agree that it is too soon to dance on the grave of his career - he is still in office.

Anonymous said...

Anon @ 9:41 & 12:53 -

That Brodhead should resign (or be so requested by the Board of Trustees) is a point we can agree upon 100%.

Speaking as a Duke alum I sometimes find it necessary to point out that Brodhead doesn't speak for me. He doesn't speak for my class. He doesn't speak for the vast majority of alumni(ae). I can easily identify with the LAX players and not at all with the administration. Like many alums, I am angered beyond measure that the Dean of Student Life (Sue Wasiolek - AKA she who specifically suggested the lacrosse players should meet with the police without the advice of legal counsel OR EVEN THE KNOWLEDGE OF THEIR PARENTS) has escaped the excoriation she richly deserves.

Perhaps we disagree on a major point as I do not want Duke to be irreparably damaged by this incident.

I DO want to see the school cleansed and improved. It has been a great place, it can be even better, and it doesn't have to be destroyed in the process. However, this cannot happen under Brodhead's administration. Duke was great before him, but to remain so he must be gone. So must Dean Sue. Her "advice" was unconscionable and she's gotten off too lightly.

Duke '91

Bakerman said...

RE: NC Prosecutor - "In fact, quite frankly, but for the national attention this case received, I'm not sure the Bar would have investigated. Of course, the media attention itself begs the question of whether we would be here at all." - Mar 19, 2007 7:16:00 PM

Thank you for begging the questions;

1) Aside from Mr. Nifong, how many false prosecutions were undertaken in North Carolina, say, during the last year?

2) What would happen if there was a KC Johnson in every courtroom?

3) What percentage of wrongful convictions depended on the cooperation (complicity) of the presiding judge?

4) Has North Carolina ever hosted a fair trial concerning a capital crime?

5) Isn't it true that the accused is always guilty?

6) Why should the "Grand Jury" be held liable when the resulting indictment was based entirely on the false testimony of the prosecutor?

7) Why are Grand Jury transcripts, where available, mostly harmful to judges and prosecutors?

...

Anonymous said...

Kemp @ 10:05:
Did you mean US AG or US Attorney?

Anonymous said...

Bakerman, you bring up many good points. I wonder how many other people Nifong railroaded during his time in office - he certainly doesn't seem to be at all familiar with truth or ethics.

Anonymous said...

The "Delta Dawn" song is great.
I'll be using in my show.

Thanks so much. I absolutely love it!!!!

Quick statement:

I think the Group of 88 will forever travel the abyss as academic transient zombies. Maybe the NC NAACP runs a shelter.