Tuesday, April 17, 2007

NDAA: "The Primary Ethical Duty of a Prosecutor Is To Seek Justice, Not Merely To Convict"

National District Attorneys Association President Mathias Heck, Jr., has just released a significant and powerful statement on the case. I quote it in full:

The recent case of the exonerated athletes in North Carolina has affirmed the importance of the ethical standards of America’s prosecutors and serves as a reminder that the primary ethical duty of a prosecutor is to seek justice, not merely to convict.

The National District Attorneys Association (NDAA) has been instrumental in developing rigorous rules and standards which govern the actions of prosecutors. These standards severely limit public comment on pending cases, the personal belief of the prosecutor as to the defendant’s guilt, the contents or existence of confessions, the results of any scientific tests, and the credibility of witnesses.

The NDAA’s commitment to the highest ethical standards is reflected by the adoption of the National Prosecution Standards, the establishment of the National Center for Prosecution Ethics and the provision of specialized training in prosecution ethics and professionalism at the National Advocacy Center.

In our search for justice, prosecutors are uniquely obligated to make timely disclosure of any evidence which may tend to negate the guilt of the accused. On a daily basis, over 30,000 state and local prosecutors across the country are responsible for evaluating evidence in cases and making difficult decisions to prosecute, not prosecute, or dismiss charges previously filed when the interests of justice are best served. Sometimes justice is best served by declining to prosecute.

The confidence of the public and the very integrity of the criminal justice process depend on strict compliance with these ethical standards. To the extent that any individual prosecutor violates these high ethical standards the public confidence in our criminal justice system is undermined and the image of all prosecutors suffers.

The NDAA, as the voice of America’s prosecutors, condemns any intentional violation of these standards.

The allegations in this case, if true, represent an aberration. They are not the custom and practice of the thousands of prosecutors who each day seek the truth and uphold the high ethical standards required of prosecutors who bear special responsibilities to the American public.


Anonymous said...

from a non-lawyer / retired professor: Quite a powerful statement. I am still perplexed by the fact that Nifong still is the DA. Clearly the system in NC has a non-existent system of checks and balances to deal with a rogue prosecutor.
Thanks again for your good work KC.

Ex-prosecutor said...

As a lawyer who was a prosecutor for 12 years and has been involved in criminal law for 35, I believe the comments of the NDAA are accurate. I've dealt with a lot of prosecutors, many of whom were difficult and so prosecution minded as to be unfair. I've seen a few dirty tricks, but nothing even close to the multiple transgressions of Mr. Nifong. He richly deserved all of the bad things I expect will happen to him, as do officers of the Durham police department.

As I recall,virtually his entire legal career has been as an undistinguished prosecutor. My experience is that who have done nothing other than prosecute are much more likely to develop a them vs. us attitude, which is common among police officers. also common for long-term prosecutors is the feeling that they are being left behind by lawyers who are in private practice and are viewed as being inferior. These views often are true, for prosecutors' offices can collect lots of deadwood that remain because they could not make it in private practice. Fortunately, there are a number of career prosecutors who are both talented and fair.

In dealing with the renowned lawyers who represented the defendants in this matter, Mr Nifong, I expect, wanted to show them how tough he was.

The reason for making it difficult to remove a judge or prosecutor is to insulate them from being retaliated against for making unpopular decisions. Unfortunately, this procedure does not have an exception for those who engage in disgraceful conduct.

There is no way he'll keep his license, and I expect defense lawyers are waiting until after the June hearing to file their suits. What will be interesting, and I am not familiar with NC procedure on this, is to see what entity provides a defense to Mr. Nifong in the civil rights lawsuits which I expect will be filed. In my jurisdiction, the state AG would do so, but that cannot be the case here in view of his statement that Mr. Nifong is a "rogue" prosecutor, among other things.

Jacqueline said...

10:08- Agreed. Anyone who is curently being prosecuted by this DA cannot feel secure about the legal process. Heck may have been attempting to reclaim faith in the national process (note: "aberration") but how can anyone believe that to be true in Durham while Nifong is still prosecuting and recommending continued prison time for a man who stole 173.00 28 years ago?
At the minimal, he should be on administrative leave until the state bar makes a decision. This is common procedure for most public officials and public school teachers.

Anonymous said...

No one is paying attention to this anymore.

Anonymous said...

Not true. I am. And N & O will.

Anonymous said...

They will as soon as these lawsuits start flying in. What a bunch of crooks.

miramar said...

Ex-prosecutor's comments might help explain the animus that Nifong holds towards Joe Cheshire, something that apparently not even Mr. Cheshire understands. Nifong had a career that was beyond undistinguished, Mr. Cheshire is successful and respected, as were the other attorneys, and he wanted to show them who was boss. Does anyone remember Nifong's observation that if I were a defense lawyer, I wouldn't want to go up against me? I guess he was talking about the kind of lawyers he ran into in traffic court, not the ones whom he faced in this case.

This might also be a good time to remember Professor Irving Joyner's comment regarding the evidence that the attorneys were selectively releasing in their defense motions before the trial. Professor Joyner said that just because the lawyers were dunking in practice, that didn't mean that they would be dunking during the game, and that everything would change when the trial started. Professor Joyner, I would say that based on the December 15 hearing, the attorneys weren't just dunking, they were breaking backboards.

Anonymous said...

Well,I am - I just bought a hat that says "Blog Hooligan." One would hope that the members of the NDAA are paying attention. Seriously, I hope when the Nifong thing is resolved to leave Duke and Durham forever. I want the boys to get on with their lives. This looks like a good thing,,

Anonymous said...

where can I get one of those hats?

Anonymous said...

"I've dealt with a lot of prosecutors, many of whom were difficult and so prosecution minded as to be unfair. I've seen a few dirty tricks, but nothing even close to the multiple transgressions of Mr. Nifong."

So, Mr. Nifong's mistake was to go far enough to get caught. And of the other prosecutors "smart" enough to not get caught? The NDAA statement is necessary and welcome, but how many wrongful allegations, charges or convictions can one stomach and still say that "the system works"? A few hundred misguided prosecutors can ruin many lives, hiding misdeeds over the course of time and space of state apathy, and still get paid.

Alternatively, the problem is intractible, therefore we accept it in it's present state.

Anonymous said...


I am fascinated that ordinarily the AG would be called upon to defend Mr. Nifong in the civil rights cases. I had thought it would be up to the AG or the Feds to bring criminal charges against Mr. Nifong and possibly his DPD cohorts...is that correct? Certainly the locals could not possibly be expected to manage this.


Anonymous said...

Observer: Feds won't get involved. Gonzales and DOJ are only interested in illegal immigrants' civil rights (especially those that continue importing drugs).

On the other hand, ACLU is interested only in terrorists' civil rights.

Too bad Duke3 are not illegales or terrorists.

P. Rich said...

"PR is breaking out all ooo-ver." sung to the once-popular tune.

Anonymous said...

What rot.

Not one mention of the right for the accused to prove their innocence at trial.

Not one mention of the accuser's right to a jury trial.

What's next, Grand Jury's keeping records???

bill anderson said...

Ex-prosecutor gives us some very wise and insightful words. I think that all of a sudden, Mikey of Traffic Court suddenly was The Man who was the Face of Durham for a few weeks.
Remember his comment of "I would not want to face me in court"? Such arrogance and bravado.

Yet, we cannot forget that he almost got away with it. He rolled the dice on the DNA and could have pulled it off had the defense not been so astute. Furthermore, most people believed him because he was the prosecutor and for that reason alone.

This is a reminder of the terrible and awesome powers that the prosecutor holds, and how the role of the prosecutor CANNOT be like the role of the defense attorney. An attorney friend once told me that the system works only if prosecutors and judges seek justice and defense attorneys act like lawyers.

All too often, I see prosecutors acting like attorneys representing their client, the state. Furthermore, they come to believe that they are hammers, and everyone else is a nail. When that happens, justice is lost.

I do appreciate the efforts of honest prosecutors, but I will tell you that I see many people in that profession who are unethical. No, they are not as out-front evil as Nifong, but they cut corners and so some things that ruin lives. I am involved in a case with someone who is seeing that awful world from the inside, and while the prosecutor in question is not another Nifong, he still is someone who wants a conviction, but no justice.

Anonymous said...

If Nifong has even an ounce of decency, he would resign immediately. He'll try to bluster his way through this right until the end. He's in good company given the statements made by the buffoons who met recently at the Know Bookstore. I know they'll be happy together.

Anonymous said...

Why didn't Nifong just drop all the charges in December? He had a better chance to end it there.

another.anon said...

"Anonymous said...
where can I get one of those hats?

Apr 17, 2007 11:25:00 AM"

Check the LieStoppers site. Link on KC's front page.

Ex-prosecutor said...

Response to 11:31 anonymous:

I've never known of another case in which the DA had to sweat being indicted for a criminal civil rights violation. Usually, it's just a civil suit for damages. Whether the NC attorney general could seek an indictment for obstruction of justice, or some like charge, depends upon the statutory powers of the office. In some states the AG has the authority to initiate proceedings by seeking indictments, and in other states the AG cannot.

In civil rights suits against a DA and police officers, the officers usually will be represented by a city or county attorney, since they are employees of the local government. The key in such a suit is to get a judgment against supervisory officers so the judgment can be enforced against the city itself.

Generally, and I think this is true in NC,a DA, although elected locally, is a state official, so, often it is the state through the AG's officewhich provides the defense. Even if that is true in NC, it cannot occur in this case because of the various comments made by the AG against Mr. Nifong. Even if they have an obligation to represent Mr. Nifong, they could not do so.

A lawsuit will seek damages against Mr. Nifong personally, meaning that his bank account can be cleaned out, his assets seized, and a lien put on his house, which I assume is jointly owned with his wife. He may have a home owner's policy which may require that the insurance company provide a defense and, in many states, they could not avoid this responsibility even by offering policy limits. Such limits would be far below the size of the judgment which would be expected against Mr. Nifong.

Lawyers cannot represent clients with inconsistent defenses, meaning, for instance that Addison and his supervisor would have to have different lawyers, allowing Addison and the supervisor to dump on each other.

In a civil suit in this matter, there easily could be 8 or more defense lawyers. It always is the prosecutor's dream to have multiple defendants going after each other. Here, the situation would be reversed because it would be criminal defense lawyers, now acting as plaintiffs' lawyers and enjoying the finger-pointing among the defendants.

Anonymous said...

Is the NDAA the group that Norm Early professed to represent?

It is somewhat disappointing that many of these groups are now rushing to denouce Nifong, while claiming their own integrity.

It would have been better is they had spoken out earlier, in June of last year at least, when Nifong's misconduct was obvious, and Duke Law Professor James Coleman began the call for a special prosecutor.

Anonymous said...

11:58 says..

Not one mention of the right for the accused to prove their innocence at trial. .. Not one mention of the accuser's right to a jury trial.

That's because you got it all wrong. The STATE must prove GUILT, the innocent don't have to "prove" anything. And the accuser doesent have the "right" of a jury trial, only the accused do.

Even though you are a fairly stupid ignoramous, you are not alone, if thats any comfort.

Anonymous said...

1252, I think 1158 was being sarcastic.

Anonymous said...

To 11:58..

Yikes! Upon rereading, I see you were being facetious. Sorry..My bad!

Anonymous said...

It isn't so great a stretch to suppose that all of the inflamatory retoric could have greatly compounded the tragedy at Duke:

[Reguarding a note alledgedly written by the suspect in the Virginia Tech massacre.]

The Chicago Tribune reported that the note included a rambling list of grievances that railed against "rich kids," "debauchery" and "deceitful charlatans" on campus. The paper also reported that Cho died with the words "Ismail Ax" in red ink on the inside of one of his arms.

Anonymous said...

Is it just me or does the possibilty of the State AG office being both the defender of a DA being prosecuted and the check that might prosecute a rouge DA seem like an obvious conflict of interest? Maybe there should be some sort of impeachment process for the legislature to step in?

Chicago said...

It would have been nice to see her call Nifong out by name and ask him to recuse himself from office. The fact that he is still the DA in Durham is beyond scary.

Anonymous said...

Carolyn says:

KC, today's Wall Street Journal lauds you - and rightly so - as one who spoke out repeatedly against the horror of Nifonging 3 innocent kids into jail for decades.

Which brings up the question of someone else who did not speak up. Though I applaud the truth of Mr. Heck's statement on behalf of the NDAA now - all I can ask is where WERE you last year when those innocent Duke players needed you? It wasn't that hard to speak out against an injustice. KC, Bill Anderson, John in Carolina, LieStoppers, etc., did it. And it wasn't even their 'job' to protest a rogue DA. It was yours. Yet you said nothing then - one of your own was trying to put 3 innocent kids into jail for decades for a crime that never happened - but only after he was stopped, have you finally spoken. Why now?

Your current statement is laudable and correct, and I applaud it. However, it's not the content - it's the timing. I'm sorry, Mr. Heck - but where WERE you last year?

sceptical said...


Say it's not true-- this report says you will be stoppong the blog in June:


The Guardian Blogger

Behind the Duke Lacrosse Story

These days, the wrongfully accused don't need a guardian angel as much as a guardian blogger. And it seems that the recently exonerated Duke lacrosse players accused of rape found a guardian blogger in Brookly College professor KC Johnson, profiled in this article, Midnight blogger exposes a scandal (4/16/07). Johnson, who provided a blow-by-blow account of the Duke lacrosse rape scandal at his blog, Durham in Wonderland, helped uncover various irregularities and misconduct that eventually played a role in the dismissal of case against the Duke students.

According to the article, the blog became an invaluable tool for the students' lawyers involved, said James Cooney, the lead lawyer for one of the three accused. For example, Johnson's blog showed that the photo identification procedures used by DA Mike Nifong were "wildly irregular" after contacting every district attorney in North Carolina as well as 10 police departments. And Johnson also discovered that a woman working on Nifong's re-electrion campaign had supported burning down the house where the alleged rape took place.

Now with the case over, Johnson will wind down his blog in June. And as with many bloggers, he'll be writing a book along with Stuart Taylor of The National Law Journal about the incident. What a testament to the power of the blog.

bill anderson said...

Your current statement is laudable and correct, and I applaud it. However, it's not the content - it's the timing. I'm sorry, Mr. Heck - but where WERE you last year?

Apr 17, 2007 1:27:00 PM

Unfortunately, the system is built upon the assumption that the prosecutor always tells the truth. Furthermore, people in those professions will instinctively close ranks. Now that they realize Mikey is a liability, it is time for the fellow to be thrown to the jackals and hyenas.

Anonymous said...

Norm Early, where are you?

Gary Packwood said...

Electing Prosecutors

I guess it is time again to debate the wisdom of electing prosecutors. We don't elect nurses and physicians.

Or we could at least, require certain NDAA competencies that need to be met so that voters would know if their DA has a moral compass.

It is just a little scary reading a NDAA written reminder to their flock about what they should already know. It is rather like the AMA sending out a reminder to surgeons to wash their hands before surgery.


Michael said...

Israeli Professor Tried to Save Students' Lives>

Jerusalem (CNSNews.com) - Former colleagues said research and teaching were very important to Liviu Librescu, a professor from Israel who was among those murdered at Virginia Tech on Monday. He died trying save his students' lives.

Librescu, 75, immigrated to Israel from formerly communist Romania more than 25 years ago. He later moved to the U.S. and became a lecturer at Virginia Tech's Department of Engineering Science and Mechanics. He had been teaching there for 20 years.

A student in Librescu's class, Alec Calhoun, told the Associated Press that Librescu's class heard a "thunderous sound" from the classroom next door as the gunfire erupted on Monday.

Calhoun was among those who jumped out of a second floor window. Before he leapt, he said, he turned around and saw Librescu attempting to block the door. He was shot and killed.
What would the gang of 88 do in this situation?

Anonymous said...

By allowing him to remain as prosecutor the City, County and State are digging an even deeper hole for themselves.
You cannot tell me that his firing could not be handled in a day even if it requires a special legislative session.

Anonymous said...

Wendy Murphy, Norm Early, Georgia Goslee, .....where are your apologies? We hear crickets chirping but no apologies from you.

Anonymous said...

(different anonymous - my first comment here ever)

I think I can guess what Nifong's "deal" was. I bet he really thought he was on the side of justice. I bet he really didn't care about his re-election, and thought (wrongly) that all those white Duke lacrosse players and Establishment lawyers were stonewalling him in a racist, classist, good ol' boys conspiracy to protect their own. I bet he really thought Crystal Mangum was a good girl, who could never make up something like this. I bet that every time some Establishment lawyer took Nifong aside to say - dude, what are you doing? look at the evidence! - it just made Nifong more and more furious at the sick injustice in the world where supposedly "good" people would bend to protect and excuse the Duke monsters.

Long story short - I bet Nifong was well-meaning - and deranged. Operating from a left-liberal 1960s playbook - with him as the conscientious objector who fights for justice in a racist, cruel and evil world. The more people tried to dissuade Nifong (or stop him), the more it fed his anger and his self-righteousness.

There's a lesson in that somewhere, for all of us.

Du said...

1:27 - Carolyn

Not everyone can speak immediately. As President of the NDAA, I'm fairly certain that Mr Heck Jr. cannot put himself in a position to take a position commenting on an ongoing prosecution. i.e. This is probably the earliest legitimate opportunity for him, as representative of the NDAA, to state a position.

Otherwise, he could have been accused of 'rushing to judgement'.

On the other head, character midgets like Brodhead, Burness, The 88 _did_ 'rush to judgement'.

Be careful for what you wish for.

Anonymous said...

JLS says...,

anon 10:08

Nifong is still Durham DA because Judge Orlando Hudson refused to follow the law and rule on the petition to remove him within the legislated time frame. Of course not following the law seems par for the course in the Durham legal system.


You make some good points, but given that the Judge in Durham won't follow the law either, why shouldn't the rest of us believe this is only a case of Nifong being thrown overboard because he became to hot to handle. Why shouldn't the rest of us doubt that once Nifong is gone everything will go back to the way it was with unaccountable DAs doing whatever they want. Why shouldn't the rest of us demand that DAs be accountable LIKE EVERONE ELSE.

Bill Anderson He did get away with it. All he had to do was drop the charges in June before anyone had filed to run against him in the fall and he had successfully smeared 3 innocent men to win an election. Only his stupidity and stuborness prevented that. And he continues to hold an office he only got by corrupting the Durham legal and electoral systems. This is why he needs a serious punishment.

Anonymous said...

Regarding Nifong:

Isn't it time for the potbangers to chant "Get A Conscience, Not A Lawyer!" Ditto for the rest of the soon-to-be-defendants.

Btw, as a lawyer, just a guess, but I would say that it would be hard to successfully sue the Gang of 88. Besides, why sue a bunch of turnips? If the lacrosse boys want to be made whole, the juiciest defendants look to be Durham and Duke.

law student said...

@ ex-prosecutor

Do Duke3 have a 1983 claim? I've seen a lot of talk about going after Nifong, but he's probably judgement proof. Wouldn't they go after Durham County instead? Rodney King didn't sue the cops for common law battery, he sued the LAPD under 1983. Only the county/state can float the $3MM+ these guys stand to recover.

Anonymous said...

If the petition was going to be that east, it should and would have been done six months ago -

Anonymous said...

2:36: You could pass for a Nofing suporter, attempting to rewrite history...

The guy knew the lads were innocent from the outset.

Anonymous said...

Now with the case over, Johnson will wind down his blog in June. And as with many bloggers, he'll be writing a book along with Stuart Taylor of The National Law Journal about the incident. What a testament to the power of the blog.

KC, You should talk with the publisher about adding to the book a CD compendium of your website including comments. This blog and it's fellow hooligans have been a tremendous help to this case. It would add to the historical record to include it with the book.

law student said...

@ 4:36

I tend to agree with him to some extent. I don't think Nifong woke up one morning and said, "I think I'll railroad these guys so I can breeze through the primary." I think he was in way over his head, made a series of really poor choices that committed himself to a position, and then lacked the cojones to admit he was wrong.

Don't get me wrong: I think he should and will pay dearly for what he did. I'm not sure I agree that he was 'well meaning but deranged' so much as that he was grossly incompetent, but I think 2:36's position is plausible.

Anonymous said...

I am not a lawyer but hold an advanced degree and considered myself relatively worldly. Boy, was I wrong.

Are we to assume this is the first time Nifong abused his prosecutorial powers and he just happened to get caught? Are we to assume, for his first injustice, he picked three powerful defendants who had the resources and knowledge to fight the charges? Or was it more likely he was in the habit of his swagger from successfully abusing less capable defendants over years? His smug demeanor during the past year, certainly, indicated a confident prosecutor who fully expected his outrageous actions to past through the criminal process without issue. Unfortunately, they probably would have if not for very capable attorneys, loving families, powerful Duke alumni, and influential bloggers, like KC. Elements not present for all other defendants.

Or, are we to believe Durham is the only county and North Carolina the only state with these circumstances? I think that would be a very naive assumption.

No, this case opened up my eyes, and I am sure the eyes of many others, to the abuses in the criminal justice system. Dedicated, honest, capable DAs can wax on eloquently about a rogue District Attorney but it is hard to conclude this case is just an unusual aberration.

I shutter to think of innocent less wherewithal people, incarcerated or worse, from the immoral actions of powerful abusive prosecutors.

Anonymous said...

Why is this Nifong still DA at the end of the day?

Ex-prosecutor said...

Response to 4:03 law student:

In my opinion they have a good 1983 civil rights claim against Nifong, arising when he took over the investigation, as well as against individual police officers and Linwood wilson. State claims, such as defamation, can be appended to the federal claims to get the case into US District Court, which is where I'd want to be. To get into the coffers of the city and county, they'll have to tag supervisory personnel, which I'll bet can be done.

Sometimes, a a DA will have liability coverage for false arrest, etc., maybe through the state, but many are judgment-proof beyond their personal assets. But, as long as a civil rights suit is filed, it should be easy to clean out Mr. Nifong. I expect that his police officer co-defendants will dump on him. It'll be interesting to see if the police defendants present a unified front or point fingers at each other.

The important legal term in civil rights lawsuits is respondeat superior, meaning that the master is responsible for the acts of the servant. establishing this is the way to stick the city.

Nifong's hat trick said...

"The Primary Ethical Duty of a Prosecutor is to Seek Justice..."

Justice: "The quality of being just; fairness...The upholding of what is just, especially fair treatment and due reward in accordance with honor, standards or law."

So, where is the prosecutor who will seek justice for these 3 boys? When the AG declared their innocence, this was not justice, this was truth. They were always innocent.

Is there a prosecutor brave enough to seek justice by suggesting that Crystal Mangum suffer for her fantastic lies that destroyed numerous lives and cost millions of dollars? Who will be brave enough to see that she receives punishment?

If Crystal’s "mental state" is truly a reason not to pursue prosecuting her, then shouldn't she also lose custody of her children? Crystal Mangum needs to be accountable for her actions in order for justice to have been served. What message is sent to others who would falsely accuse if Crystal Mangum is not made to suffer any consequences?

Where is the prosecutor who is brave enough to seek justice for these 3 boys in regard to the 88 professors who defamed their names and characters? Justice would be served only by seeing that each of the 88 professors suffers as they made the Lacrosse players suffer. That would be fairness.

Anonymous said...

The sanctimonious and self-serving comments of the NDAA, timed and targeted to mislead the public into believing that Nifong was the rogue rather than the rule, make me physically sick.

Anonymous said...

The most open secret in the criminal justice system is that police and DAs have to lie to prevent the guilty from going free.

This is a function of the judicial remedy for violations of the Fourth Amendment. For example, assume a cop sees a minivan broken down on the side of the road. He stops and looks inside and sees bunlap bags with square objects pressing against the fabric. He assumes correctly that the bags contain pressed kilos of marijuana.

He cuffs the occupants and searches the van. Sure enough the bags contain marijuana. When the DA gets the case, he knows that he has a problem. The search was probably illegal. Burlap bags do not constitute probably cause for a search.

So, he colludes with the officer and the decide that the officer saw marijuana protruding from one bag in "plain sight" In other words, he invokes the "plain sight" rule.

Here, the officer must perjure himself and the DA must suborn perjury. The judge knows the game and denies the motion to exclude the evidence.

From his first year out of law school, every lawyer knows that this is happening. It is the first step to corruption of our police and prosecutors because it is so easy to rationalize. They are just keeping the guilty from walking.

In addition, the way the Fourth Amendment is applied, it protects only the guilty. If the bags had turned out to contail alfalfa, the driver would have no recourse for the unreasonable search.

Mike in Nevada

Anonymous said...

Anonymous said...
"I am not a lawyer but hold an advanced degree and considered myself relatively worldly. Boy, was I wrong."

I think you hit the nail on the head considering the performance as TV legal analysts like Wendy Murphy, Georgia Goslee, and Nancy Grace who were all once prosecutors. If the way they make judgements on TV is anything like they did as a prosecutor I imagine there are a lot of innocents in jail just at their hands.

Anonymous said...

JLS says.....,

Mike in Nevada

That is why economists like Bill Anderson [I suspect] and me argue that prohibition is more costly to society than ANY benefits society could possibly get. That it corrupts the legal process is among the worst aspects of it. Is it really worth having police that routinely lie in court and a court system nod and wink at such lying?

Anonymous said...

To JLS @ 6:50

Legalizing drugs would not fix the problem. Suppose the the FBI had not had probable cause when it found the $90,000 in Congressman William Jefferson's freezer.

Or, suppose instead of marijuana in my example the cop finds a gun used in 5 homicides.

There are conflicting values here. Suppress the evidence and scumbag goes free. Admit the evidence and perpetuate a corrupt system that allows constitutional violations.

A solution that I have toyed with would b e for the state to give liquided damages (say $1,000) to any victim of an illegal search, but allow the evidence in so that society does not suffer releasing a criminal. No DA is going to lie under oath for a lousy $1,000. In addition, the result would be to give recourse to the innocent, not just to the guilty.

KC, I apologize. I know that we are drifting off topic again.

Mike in Nevada

Anonymous said...

Good article by Cathy Young in Reason magazine entitled "Last Call for 'Rape-Crisis' Feminism"



Anonymous said...

Hey 626 in Nevada, try a better analogy. I know cops lie and I dont like it, but the guy had the marijuana. He can eliminate the corruption by not carrying drugs.

The Duke guys didnt commit a crime and were railroaded. That is what we need to fix. When a DA or cop lies to get someone who is innocent, it is much worse then when they do it to get a Defendant who gets out of a crime because of a technicality.

Kind of like getting out of a crime because you are "black and mentally ill".

Id come up with a better analogy for you but Im tired.

Anonymous said...

to Anonymous 4:36, from Anon 2:36 -

What a dope you are. Far from defending Nifong or re-writing history, I was in fact criticizing him. Re-read what I wrote.

And how do you propose to prove that he "knew from the outset" that the 3 lads were innocent? We can certainly prove he should have known! But proving his intent or inner process - that's something else.

My analysis at 2:36 incorporates information KC has brought in about Nifong's background - Vietnam conscientious objector, friend of Crystal Mangum's family, longtime hater of Establishment types in Durham, etc. Nifong wouldn't be the first "60s type" whose left-liberal self-righteousness degenerated, eventually, into Cromwell-ism and paranoia.

Anonymous said...


"That's because you got it all wrong. The STATE must prove GUILT, the innocent don't have to "prove" anything. And the accuser doesent have the "right" of a jury trial, only the accused do.

Even though you are a fairly stupid ignoramous, you are not alone, if thats any comfort".

Wrong. The defence must prove a reasonable doubt. If you insist on "correcting" people (particularly in such an arrogant and abusive way), make sure you're right first. Otherwise, you risk looking like an enormous fool.

Anonymous said...


"The guy knew the lads were innocent from the outset".

How, pray tell, do you KNOW that?

Anonymous said...

To 8:09

Yes, you must be tired because you haved missed my point. My example is not about Nifong today. It not about the innocence of the Duke LAX players. It is about the young lawyer who became an ADA 25 years ago. I will guarantee that Nifong did not graduate from law school thinking, "Now I am going out to become a corrupt DA".

My point is about a system that forces the first year ADA to make a choice. The defendant is guilty. The evidence is irrefutable. However, the cop made a mistake in the search.

Does the ADA adhere to the ethical standards that are the topic of the original post and let the perp walk, or does he suborn perjury, get the evidence admitted, and lock the criminal up.

If the ADA chooses the latter, if he takes that first step onto the slippery slope, then he runs the risk of becoming a Nifong in 25 years.

It was an ADA who convinced me not to go into criminal law. I give thanks every day.

Mike in Nevada

Alex said...

To 8:38

I would like to respectfully clarify something with respect to your comments.

What 12:52 said (ignoring for the moment that the comment he/she was responding to was sarcastic) is correct. The state must show guilt "beyond a reasonable doubt", or the accused is acquitted. This is why you will sometimes see the defence rest without calling any evidence; the defence is in essence stating that they do not believe the prosecutor proved the case "beyond a reasonable doubt". (The defence can also preserve their right to call evidence by moving for a non-suit.) If a judge/jury agrees, the accused is acquitted without the defence having "proved" anything.

However, it is also open to the defence to call their own evidence so that a case which might have appeared to show guilt "beyond a reasonable doubt" no longer does in light of the additional evidence introduced by the defence. For example, the prosecution might have led a strong circumstantial case with no eyewitnesses, which, in the absence of any other evidence, proves guilt beyond a reasonable doubt, but the defence might call one or more alibi witnesses, that a judge or juror would then have reasonable doubt.

Sorry to be so long-winded.

Anonymous said...

Criminal law looks fascinating - really need a gift for gab. Johnny Cochran - may he Rest IN Peace - was the absolute best. Joe is great also.

Anonymous said...

Mike in Nevada - agree totally with legalizing drugs - lets get the money and crime out of this. As you know, we could not even pass the little pot law here in the Silver State. Too many folk in Congress (DC) getting paid off to solve this problem. To many minor drug users in Detention Center to house the real criminals.

Anonymous said...

JLS says....,

Mike in Nevada

Sorry, but I don't see how one can have police that lie under oath just the time you want them to and not the other times you don't want them to.

It just does not work that way. So you either accept prohibitions that tend to corrupt your legal system or you put up with behaviors you don't like like drugs, hooking etc but avoid the corruption.

And sorry, but for the state to take the liberty of someone away they must show that person did something. Them "knowing" they are a bad guy and lying about them does not get it. It is corrosvie to the system and the country.

Anonymous said...

JLS, expecting police to lie in some cases, but not others, is corrosive to the entire system. That is exactly my point.

And to 10:23, I never advocated legalizing drugs. I think that illicit drugs are undermining our whole society.

I have been toying with the idea of teaching law school. From the responses I am getting to my posts, I think that I should abandon the idea. I am obviously too stupid to get a simple point across.

Mike in Nevada

Mrs. Former Prosecutor said...

A couple of commenters have pointed out the potential conflict of interest the NC State AG's office has in defending Mr. Nifong after the AG himself called Nifong "a rogue prosecutor". Given the time-consuming expense of such a defense, I wonder if that wasn't at least part of the reason Mr. Cooper went ahead and said that right out loud? Result: "Gee, too bad, we can't defend you, Mr. Nifong!"

Anonymous said...

Mike (NV),

I don't see how your proposal would work. First, for innocent victims of illegal searches, you propose compensation of $1000. How would this be accomplished? To collect, the victims would have to enter into some administrative or judicial proceedings (which do not happen currently). Given the the crowded court systems, it see this as a large problem. Second, is a monetary fine sufficient disincentive to illegal searches? Who would be awarded the fine? Would it be subject to forfeiture? I don't see a small fine as being a disincentive for LE. And for large fines (say $100,000+), I think LE would then have an incentive to lie (similar to the situation now).

Dave H. said...

Nifong is not a rogue prosecutor, the rogue prosecutor would be the one who acutally seeks justice. A very close relative of mine was framed and then tricked, tried, and convicted by the prosecutors. They did it all... suborned perjury, withheld excupatory evidence, and presented false evidence to a jury.

It's time to wake up America. Two million people in jail/prison not enough for you? Just wait, you could be next.

Look at what former Regan staff member Paul Craig Roberts has to say about it, he's right on. http://vdare.com/roberts/061211_criminal.htm

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Northen Belle said...

Ironic, isn't it, that Mr. Heck is under investigation by the Office of Special Counsel for his own legal woes.

see: http://www.osc.gov/documents/press/2007/pr07_11.htm