Sunday, June 17, 2007

Beard on Nifong

Aaron Beard has a good summary of Mike Nifong's likely unfortunate future.

Said Joe Cheshire, "We believe that this issue is enormously important and it carries significant precedent and (the judge) ought to be the one to make that decision because it happened in his court."


Anonymous said...

The defense lawyers should send a copy of the Bar hearing and decesion to the Justice Dept. High light the words "intentional prosecutorial misconduct". I doubt the Feds will get involved, No is dead, no one is in jail, and if the Judge wholes Nifong in contempt someone was found guilty..

I believe that the new DA in Durham, where the crimes were committed by Nifong and pals, will have to request the state investigate, because of local possible conflicts.

That will be the mechanism for the state to clean house.

Bella said...

Very good summary. Someone over at the LS forum was saying that the families can't go after the media for libel...and I'm not sure I understand that. If they made unfounded and untrue assumptions and statements beyond what Nifong said (i.e. Nancy Grace's incorrect statements about lie detector tests), can't they be held responsible?

Anonymous said...

To any lawyers out there - Does a criminal contempt conviction remove Nifong's immunity from future civil suits ?

Anonymous said...

very difficult to prove. Have to prove they knew it was false.

The plaintiff had to prove not just that an untruthful statement was made, but also that it was made with "actual malice" - that is, with knowledge of falsity or with reckless disregard for the truth.

Anonymous said...

Nifong has immunity for job related DA work. If you sue him its hard to get around that. But if you can prove that his job did not include Lead Investigator, or making campaign speeches. But he will say he had his DA hat on when making the statements. The best shot might be that he order the false lineup and told the police how to investigate.

It would be a stretch, but some very good lawyers are looking to sue him.

But in real life, no one can sue a DA.

Anonymous said...

said it correctly. Defamation (which is inclusive of Slander and Libel) are difficult to prove in court, despite the seeming ease in which it seems they should be.
Having said that, it is not impossible to win them, and one must review the actual statements from people closely. If they were made knowing they were factually incorrect, then one may proceed. People like Nancy Grace, Wendy Murphy and others are truly slime, poor excuses for humanity that the MSM allows to spew crap on the national airwaves. I would love nothing more than to be able to show they made knowingly false statements, becasue after that, showing malice and damage would be easy...


Anonymous said...


If I say (publicly, on NYT) that you shot JFK and you failed to pass lie detector test for it, is it libel/slander?

Anonymous said...

Don't waste time trying to sue the media.

They will say well, the DA was lying to us. I did not know about the alibi or the woman's conflicting stories etc. Prove I know about it.

In the end they will say look at Nifong he lied to everyone, we had a DA swear he had the players cold.

If the national enquirer, and show biz rags can stay in business, what does that say about libel laws in the US?

Anonymous said...

celebrities (ie Angelina Jolie) have recently won their cases against magazines.

Anonymous said...

Question for Lawyers:

What are the odds Nifong's indemnification agreement with Durham has an exception for "Intentional Prosecutorial Misconduct"? Most commercial indemnification agreements I have seen (and I have seen a bunch) have an exeption for "gross neglegence" and "willful misconduct." Wouldn't the City of Durham have something similiar?

Anonymous said...



Anonymous said...

I agree that suing 'the media' would not be worth it.
And 'the media' is not useful anyway as the unit of analysis imho. Nancy Grace is not the same as the New York Times.
One aspect of the coverage that is interesting to me is the hostility from the sports writers of WaPo and NYT in particular, even ESPN. It reminds me of a relative who once worked the sports beat and quit because, he said, he loved the game of football but he hated sucking up to dumb high school jocks in small NC towns.
I got the feeling from the coverage that the sports writers really don't like athletes they cover. They think they're smarter than they are, or some other grudge.
Ironic really because for Duff Wilson at least it finally got him from the back bench to a front page byline. And he blew the story right up to the end.

Ryan Frank said...

The problem isn't so much proving libel against media figures, its that courts are REALLY reluctant to issue any ruling that could be viewed as having a 'chilling effect' on speech, reguardly how freaking guilty they are (Nancy Grace anyone?)

Anonymous said...

The problem is they do have Nifong as the scapegoat for all their sins. The "knowingly" aspect of a defamation suit is difficult to prove because of Nifong. So someone like Nancy can just claim she was another duped by Nifong and escape liability. It's sad but the media is pretty immune. I think it used to be worse, the tabloids used to get away with saying *anything* about a celebrity by simply prefacing it with "sources tell us." A few celebrities successfully sued because their "sources" were so nebulous ... so they aren't quite as outrageous as they used to be. In this case though, all they need to do is to point out Nifong as their "source" and they're off the hook.
As far as as suing Nifong goes, I fear that may be a dry well. Much has already been made about huge personal campaign loans to show how desperate he was to win the election. That plus the fact that he is now unemployeed will likely result in him being pretty broke soon. I wouldn't be surprised if Cy divorces him in the near future as well. I don't feel sorry for him; but that also means he will have no money to pay those he has wronged.
Really, I think the best bet for the three accused is to go after Duke via an off the record settlement like Mike Pressler did. In the very least, I think Collin and Reade should try to get tuition for their last two years in college. Reade can play lacrosse at Brown; but Brown does not offer lacrosse scholarships like he had at Duke. It's likely Collin won't have a scholarship to whereever he choses to attend. Yes, both were offered the option to return to Duke; but I think they could successfully prove Duke was directly responsible for the atmosphere that made returning impossible. Dave lost a year of income; but it would be harder to prove Duke is directly responsibile for that.
As for the biggest chunk, lost legal fees I don't know. Go after the state of N. Carolina?

MisterBunn said...

He has an obviously bright future as a Democratic member of Congress. There's probably still time for him to get in for '08.

Anonymous said...

NC has a limit on their liabilty, can not remember what that is. Duke is the golden goose. Kicking the kids off campus, all of the team, seems to me to be an actionable tort. What the hell do I know. Duke settled with Pressler. My bet, they are talking to the families.

Have no doubt about it, the Evans are not to be F**ked with. They and the Finnerys have the funds and the will to run these people into the dirt.

Victory is ours saith the Lord.


miramar said...

When Willie Sutton was asked many years ago why he robbed banks, he answered: "Because that's where the money is." When Woodward and Bernstein needed advice from Deep Throat, he answered: "Follow the money."

So while the families and attorneys certainly want Nifong to pay in criminal court, in civil court they won't be too interested in a career civil servant with scant assets. Duke and Durham, on the other hand...

Anonymous said...

If Dean Sue did advise the students not to call their parents, and not to call a lawyer, I wonder if that is actionable. At least testimony to that would be embarrassing to Duke. Some involve complicity with DPD. The disclosure of student emails are another, the failure to scrub the pictures from the web site another, complicity in disseminating posters another, failure to protect public safety with the marchers and banners another. I don't know the law on this but at the very least the story is an embarrassment for Duke.

Anonymous said...

How much would Duke be willing to pay to avoid discovery and a trial? I'm thinking this is an 8-figure number. Keep in mind Duke has a $4.5 billion endowment that will probably grow to about $5 billion in 2007. $10 million is only 0.2%. Duke's settlements with Dowd and Pressler have shown their willingness to keep these matters out of the courts and public notice.

lm said...

It really points out how critical it was to disbar and disgrace Nifong, not just for what he did, but as a warning to other prosecutors. Media will be able to say they were duped because no one could believe that a prosecutor would bring false charges.
And as for further action against him - just viewing the clip where he laughed at mention of Reade's alibi in court would convince me to keep going. It is now obvious that he was laughing not because he didn't believe there was one, but because he knew it simply didn't matter. He had created the case up to that point and would simply create (or hide) whatever facts were needed to surmount obstacles. No wonder he could say with certainty he knew more about the case than the other lawyers ever would - it was all in his head.

Anonymous said...

Actually, in addition to Duke and Durham, the Group of 88 (whose pockets probably aren't very deep) could also be required to go to the expense of defending themselves in individual law suits. Revenge is a very sweet desert!!!!

Gary Packwood said...

Anonymous 9:23 said...

...If Dean Sue did advise the students not to call their parents, and not to call a lawyer, I wonder if that is actionable. At least testimony to that would be embarrassing to Duke. Some involve complicity with DPD. The disclosure of student emails are another, the failure to scrub the pictures from the web site another, complicity in disseminating posters another, failure to protect public safety with the marchers and banners another. I don't know the law on this but at the very least the story is an embarrassment for Duke.
If Dean Sue or anyone else at Duke was in communication with Nifong throughout the early days of the case and feeding him bogus information, is Duke culpable to legal challenges from NIFONG?

Legal Eagle said...

Establishing criminal conduct will overcome indemnification.

The onus of Mr. Nifong’s (Durham, et al) criminal conduct now shifts back to Judge Smith’s court. Which is not encouraging, since thus far he has failed to hold Nifong in criminal contempt.

Interesting too that Judge Smith thought it prudent to issue a public warning to Mr. Nifong as the Bar proceedings were about to start, to the effect that what Nifong got away with in Smith’s courtroom should not now be construed by Nifong or the Bar as an esteemed jurist’s blessing, rather, that laws were broken.

Don’t ask why prosecutors are allowed to violate the law, or why judges lean back in leather chairs. Rather, look to the disbarment as an open invitation for Smith to come out and play. Safely.

Anonymous said...

Well, Stephens' rulings were totally biased against the defense. Judge Smith has done better than his predecessors.
And he's from Semora.
I'd go thru Semora when I was in school and it was a flyspeck then. An old tar paper gas station with headache powders, a BBQ place with a very old outdoor BBQ pit, maybe a post office. Probably a tourist place now with summer houses for faculty types. But I can't see anybody his age from there being impressed by any fancy pants city types. He may not stick his neck out or show his cards but I bet he'll be fine.

Heather said...

just a question. Where does this leave the OTHER cases Nifong has prosecuted in the past?

Will this 'fiasco' provide grounds for a bunch of (hugely expensive to North Carolina) appeals?? Which could go on for years?

I also agree that Duke has the money, and it will have to pay. But it would be totally wonderful to see some of those profs and administrators pay a personal price, also.

Anonymous said...

BDay--are you a "public figure"? Because if you're not, I'd guess it definitely IS slander if 8:24 goes on TV and says you shot JFK and failed a lie detector test (unless, of course, you DID shoot JFK and fail a lie detector test).

scott said...

My guess is Duke will pay the various families of the LAX players. They paid Pressler and while he and his family suffered terribly for nothing, he didn't get it as badly as Reade, Dave, and Collin.

If Dave Evans Sr. were to round up some of his friends in legal circles who are experts in civil litigation, they could make life really uncomfortable for Brodhead, Dean Sue, and several other members of the Duke community. I'm not saying they would win a civil suit, but there are some dirty little secrets at Duke surrounding this case that could come out during discovery that I'm sure they'd rather keep buried. Hence, the payment to Pressler.

Hence, also, future payments to not only the 3 families at the center of this fiasco (long live Lane Williamson), but all other members of the lax team who were dragged through the mud. Payments that more than cover legal fees for the 3 and enough walking around money for the others to keep them from exposing that "something happened" at Duke (just not at 610 Buchanan Street).

They need to go after Nifong simply to ensure he cannot profit from his misdeeds through book and movie deals or commentator work he might be offered in the future.