Thursday, June 07, 2007

Smith Cautions Nifong

One of the most important moments in the case occurred out of the public eye. The first judge assigned to the lacrosse matter, Ron Stephens, acted very much like the figure who would, amazingly, give Mike Nifong a de facto endorsement in the New York Times a few days before the election. Stephens signed off on the absurd March 23 NTO; he allowed Nifong to behave unprofessionally in court; and he showed no interest in ruling on the serious motions filed by Kirk Osborn. Stephen’s successor, Kenneth Titus, proved little more than a pawn for the pro-prosecution state NAACP.

It’s not hard to imagine how the case would have proceeded with the biased Stephens or the timid Titus overseeing affairs. It’s highly unlikely that either man would have allowed the detailed questioning of Dr. Brian Meehan that cracked the DNA conspiracy on December 15.

Titus only lasted one hearing; in the late summer, Nifong and the defense jointly agreed to remove the case from North Carolina’s “case management” system and assign it to only one judge. Under North Carolina procedure, both sides submitted lists with four names. The only name on both lists was W. Osmond Smith. His including Smith was one of the biggest mistakes that Nifong made. Smith proved to be a fair judge committed to upholding the law; Nifong, on the other hand, needed a judge who would look the other way as he carried out the highest-profile case of prosecutorial misconduct in modern American history.

In a 10-page memorandum released yesterday, Smith reminded Nifong that he still could have a major role to play in fallout from the case. Ironically, Nifong himself set the stage for the release of Smith’s document. In his rambling December 28 response to the Bar (the letter in which Nifong suggested a conspiracy against him led by none other than Friends of Duke’s Jason Trumpbour), the district attorney strongly implied that Smith had no problem with his entering into an agreement with Dr. Meehan to intentionally withhold exculpatory DNA evidence. Wrote Nifong,

Let us assume that this allegation [by the Bar] is true. Then my false representation to the Court would have been made at the same hearing where the evidence was received, uncontested and under oath, which revealed its falsity. Judge Smith would then have found himself, as the Court having jurisdiction over the matter in question and having direct knowledge of through testimony of my alleged professional misconduct, with (1) the authority under RPC Rule 8.3 to impose discipline on me directly, or, in the alternative (2) the responsibility to report such misconduct to the North Carolina State Bar . . . His failure to take either of these actions would indicate that he believed either (1) that no such misrepresentation [about the DNA evidence] had been made, or (2) that any misrepresentation that might have been made failed to raise a “substantial question of [my] honesty, trustworthiness, or fitness as a lawyer. Either conclusion would disprove the allegation that I had violated the Rules of Professional Conduct.

Translation: Since Smith didn’t act against him on December 15, Nifong was in the clear ethically on the DNA issue.

Smith’s order of yesterday unequivocally rejected Nifong’s assertion. Wrote the judge,

Significant concerns regarding discovery issues arose from the December 15, 2006 hearing. Since the hearing was recessed without completion . . . these concerns were not addressed by the Court at that time, and due to subsequent developments have not yet been addressed by the Court . . . Certain other of those concerns remain as they pertain to actions of counsel.

Further, since the hearing was recessed without completion and without addressing the concerns mentioned above, it would be incorrect to draw any conclusions as to what the Court believed or disbelieved regarding such concerns.

Translation: Since Smith’s “significant concerns” with Nifong’s behavior have “not yet been addressed by the Court,” the Bar should draw no conclusions from Smith’s decision not to sanction the DA immediately. And, as Smith reminded both the Bar and Nifong, he possesses full authority over all “matters related to disciplinary actions involving attorneys before the Court.”

Smith’s memorandum also laid out other areas where he might potentially act:

(1) Expungement. It is inconceivable to me that the three falsely accused players will not petition the court to expunge from their records the grand jury’s indictments of them. It is equally inconceivable to me that the court will not grant their requests.

Moreover, the 43 unindicted players have very strong grounds to petition the court to expunge the March 23 NTO, thereby removing their DNA from the North Carolina database.

(2) Sealed records. The inclusion of this item on Smith’s list came as something of a surprise. The only sealed records in the case are Crystal Mangum’s medical files. Demand for their release has come from a highly surprising source—Wendy Murphy, who wrote in the Boston Globe, “I was told by a reporter that the defense refused to release more than 1,000 pages of evidence.”

Of course, the defense couldn’t release that evidence because it was under seal. Would Smith be willing to consider a motion from Murphy to unseal Mangum’s files?

(3) Matters “related to applicable investigative and administrative orders.” Given Nifong’s repeated violations of such orders, no doubt he was chilled by this item’s inclusion on Smith’s list.

In the end, Smith performed the role the system demands from the judge—as a neutral arbiter committed to ensuring that both sides played fair. In this case, one side didn’t, and Smith’s memo suggests that he will take appropriate action.

48 comments:

gs said...

Another reason Nifong's lawyers will tell him to surrender his license.

The hearing would just put more sworn testimony of what Nifong did on the record. The judge will be watching.

Anonymous said...

Pursuant to request of the parties, undertook for in camera review voluminous documents containing confidential records relating to the alleged victim for determination by the Court as to whether same should be disclosed to the defendants;


Given what is already out, it seems a safe bet that these voluminous documents would have quite a lot to say. As I've said, this was a naked frame from the outset. A good portion of these voluminous documents were undoubtedly on-file at the Durham County Courthouse before 13 March 2006.

Note that this doesn't comport w/ the image that was being put out in the press about our Precious "African Queen."

Insufficiently Sensitive said...

My gut feelings since the beginning were that Nifong would be able to proceed in his inimitable manner under the protection of all the various judges who presided over the developing circus.

What a happy surprise, to find that the judge that counts in the home stretch may not be such a Nifong-enabler after all.

Now if some similar happy surprises could just jump up and engage the DPD, and the Duke admin, and G88...

Anonymous said...

JLS says...,

I am somewhat less impress with Judge Smith than Prof. Johnson and I read this filing slightly differently.

This is yet another warning shot across Nifong's bow. The Judge is telling Nifong that he will not be used as his defense.

The reason I suspect this was filed now, was that the legal establishment in NC wanted it on the record. This is more evidence that the ducks are being lined up so that the Nifong case is an open and shut case.

Now maybe the powers that be hope that Nifong will cop a plea. Maybe they are just closing the noose around him and would not even take a plea from him. But clearly this is more evidence that we will not see a whitewash next week.

Anonymous said...

It's 12:56 - where are the trolls? I was becoming amused by them.

C'mon trolls - surely Osmond Smith has also been imbibing buckets of the blue kool-aid? Or maybe uber-spinmeister KC Johnson has made this all up...or, I know! The part of the judge's memorandum adverting to "concerns regarding discovery issues" was typed in a different font?

Anonymous said...

the detalia of this case is nothing short of amazing...

Anonymous said...

The noose tightens -- and so it goes.

Das said...

"might potentially act" = might act.

Anonymous said...

Hollywood will do a cheesy made-for-TV movie about the fear that female and black students endure on campus as they're preyed upon by cruel, rich white male students and inbred hillbillies from the local community. Militant black professors will collaborate with their sensitive white marxist counterparts to defeat the twin menace, bringing an end to the fear and pain. The world will know that there are no innocent white male gentiles.

Anonymous said...

"Nifong, on the other hand, needed a judge who would look the other way as he carried out the highest-profile case of prosecutorial misconduct in modern American history."

I'll bet there are plenty. The lynch-pin of justice, the last refuge of the falsely accused, the final straw in the 'justice' system was broken. kaput. That Smith was selected by chance suggests the true starting place of this horror. These judges are still playing for keeps. Pathetic. Who's next?

Legal Eagle said...

Re: "Significant concerns regarding discovery issues arose from the December 15, 2006 hearing. Since the hearing was recessed without completion . . ."

IMCO - There appears to be an additional discovery issue at play here, wherein a judge - Smith in this case - must notify a rogue prosecutor - i.e., Mr. Nifong - that although the judge overlooked certain prosecutorial violations (absent comment or ruling) during a prior proceeding, this should not be interpreted as the standard, tacit, or typical extra-legal agreement.

Moreover, the judge reserves the right to notify said rogue on the 6th month and 11th hour, since failure to do so might impede, call into question, and/or otherwise undermine said judgeship.

Mr. Nifong is now and officially radioactive - no more, no less.

Anonymous said...

Why did he wait 6 mos. Waiting to see how the wind blew? Courage.

Anonymous said...

Essentially these judge's are telling Nifong not to show for hearing. They have given him cover not to appear - and he will not appear. I guess they (Smith & Hudson) don't want to be looked at too closely.

mac said...

June 12. Gonna be a long weekend
for MN. Lots of others will be
praying that he doesn't show,
delaying the arrival time for
the bus...
Until the students' attorneys
begin their depositions.

And then there's the possibility
of criminal charges...

bill anderson said...

Yes, ladies and gentlemen, prepare yourselves for the Summer of The Fong. Or, perhaps we can call it, "The Fong Show." (If only Chuck Barris could be the emcee for this one....)

We have the Ultimate Bar Exam next week, to be followed by a trip to Judge Hudson's court, followed by some activity with Judge Smith to be followed by lawsuit after lawsuit.

Indeed, you may have to purchase tickets early if you want to have a ringside seat for The Ultimate Fongfest. Could not happen to a nicer guy.

wayne fontes said...

Why now? He's had six months to file this. Was he asked to get it on record by the bar? Could this be meant as a personal shot at Nifong by filing it just before the hearing? I think the most likely answer is that the NC legal establishment is sending the message to Nifong to turn in his license without a fight. They want him to go quietly leaving all of the skeletons below ground.

Anonymous said...

I predict another Friday surprise (although it may not occur until Monday) with the Fong surrendering his license and resigning as DA. The Establishment is telling him to take one for the team. They are presenting him with an offer he can't refuse.--Buddy

Anonymous said...

I predict Nifong is going to trial. I predict he won't resign or surrender his license.

bill anderson said...

Should Nifong take the stand and perform his own version of "scorched earth," the only earth he will scorch is his own.

Anonymous said...

I'm wondering why Nifong agreed to remove the case from NC's case management system. Was it because he felt that sooner or later the matter would come before a judge that would put an end to the charade? Did he believe that rolling the dice on one judge was a better option?

bill anderson said...

That is a very good question. I don't know the answer, but have wondered it myself.

Anonymous said...

Judge Smith could find Nifong in civil contempt and impose sanctions including ordering Nifong to personally pay the Defendant's attorney fees. See, e.g., Jones v. Clinton, 57 F.Supp.2d 719 (1999)
MDEsquire

Anonymous said...

Re agreeing to remove the case from the case management system--perhaps, given the high profile of the case and the issues with consistency/continuity of rulings that had already come up, even Nifong realized that opposing an effort to remove the case from the system would make him look bad. This was, after all, a step that was taken primarily in the name of efficiency rather than "fairness." It's pretty hard to stand publicly against efficiency.

Gary Packwood said...

"Nifong was in the clear ethically"...
::
What is the difference between being in the clear ethically and being in the clear ...legally?

I am under the impression that ethics begins where the law ...ends.
::
GP

Anonymous said...

1 out of 3 judges behaved honorably even in this incredibly flawed prosecution. This clearly highlights the incestuous relationship between judges, lawyers and DAs.
We the voters need to demand oversight of the legal profession by some mechanism outside of the legal profession if we are ever going to see the search for truth and justice return to the courts.
Remove oversight authority from the lawyer infested Bar.

Anonymous said...

Dont forget that even if nifong resigns from the bar and as DA, judge smith still has the option of committing nifong to the small room with bars for lieing to the court. Smith may actually enjoy doing that. What judge wants to be viewed as accepting lies in his court as evidence. We cant forget that nifong said there was no other dna evidence in court to the judge and then after meehan's testimony and outside the courtroom said oh thats right therre was but we didnt use it to protect all the other accused. roflmao

Anonymous said...

Please answer:
What will it take for Nifong to lose his pension?
If he voluntarily resigns will he collect? Does he have to be found guilty of criminal charges to lose his pension?
Revenge is bittersweet!

Anonymous said...

I sincerely hope that the process moves forward and everyone >Mr.Nifong and others in the system of justice who did not do their jobs to stop him>get first what the system has in place as punishment. Then, though I know it will be hard for the families, I really hope they go after everyone involved and make them pay. Only that will get the attention of the shamefully silent majority of usually vocal groups and reps on civil rights and injustice. There would have been so much more support for their legitimate efforts in the future to right wrongs if they had supported this outrageous and obvious wrong. It's not going to be as easy now, they've lost the decent people who have seen the truth on this one from the beginning, and its a silent majority too. What we saw was a huge discrimination against three white males, just because they were.

Anonymous said...

I'm a recent NC resident, but do not know how this "case management" business works. If this has been discussed previously, I missed it. This is the first time I have seen it mentioned, and at least it answers one of the questions I've always had as to why there were so many judges involved in this case.

Based on the comments here and trying to reason it out intuitively, it sounds like it's a system whereby there is not one judge assigned the case, but rather a pool of judges that could be selected from to preside at any given time, hence they moved from Stephens (corrupt) to Titus (wimpy) before they moved away from the system and Smith took over.

Questions:

1. What are the perceived benefits of this system? It sounds to me like a recipe for disaster as there would be no continuity throughout a case with different judges presiding at different times.

2. Who decides which cases will be put into the case management system?

3. Why would a case with such serious charges and the probability for a prolonged trial process as this one be deemed suitable for such a process (see # 1 above)?

4. Do other states have a case management system or is this another NC anomaly that guarantees a justice system that rewards chicanery, similar to the non-recording of Grand Jury testimony (I still can't believe NC can get away with that in the 21st century -- North Carolina aka Rubes R Us).

Thanks for any input anyone can provide to help educate me.

Anonymous said...

One thing I did not in the meom was that when he listed copies, Judge Smith or his office's listed service to:

Attorney for Defendant Finnerty

Attorney for Defendant Selgimann

Attorney for Defendant Evans

That is not their correct legal status and a Judge and his office should know better. It shows to a degree how much the harm will continue.

Anonymous said...

Even if Nifong resigns, he still should go to jail. He committed a crime. He of all people who should uphold the law should pay the price for his crimes. Perjury is one, he made Judge Smith look real bad. He is trying to excuse his behaviour in court by dragging Judge Smith into his mess. If the judge knew about the withholding of DNA evidence and the collusion with Meehan, then Nifong thinks his behaviour is acceptable.

Ralph Phelan said...

"In the end, Smith performed the role the system demands from the judge"

Which by normal standards makes him just a normal guy doing his job like the rest of us do, though not particularly quickly.

By North Carolina standards it makes him a friggin hero.

Gary Packwood said...

Anonymous 9:19 said...

...Please answer:
...What will it take for Nifong to lose his pension?
If he voluntarily resigns will he collect? Does he have to be found guilty of criminal charges to lose his pension?
...Revenge is bittersweet!
::
About 30 years ago, Bosses would fire workers (usually steel workers) about six months before they were eligible for their pension.

The workers got nothing and Bosses talked about getting rid of the old unproductive guys. Bittersweet revenge as it were.

Banks got to make money on their repossessed homes and cars and the Government of the United States got to pay welfare to the old guys and their families...including medicaid.

Such a deal!

The congress of the US changed the rules many years ago in a blinding vote of the obvious and now we have 'vesting' whereby you usually can't loose your pension and your employer is obligated to pay that pension. Bittersweet revenge as it were.

We would have to study 'vesting' rules for Nifong but I for one don't want to pay welfare for he and his family to include medicaid.
::
GP

Anonymous said...

Nofing will lose his pension if it is garnished as part of a settlement in civil suits. So the taxpayers are still on the hook, only it winds up going to those he harmed. A small token of justice.

Anonymous said...

10:13-- Are you sure state pensions can be attached in NC to settle damage awards? Take the O.J. case, his NFL pension is not subject to attachment in Florida (where he lives) notwithstanding the $35MM judgement agaist him.

Anonymous said...

Nifong will be the 'first' domino in a long line of dominos to fall.

DPD, Duke Admin/G88, MSM, NAACP, if Nifong falls, there is nothing you can do or say to stop your own downfall. No whitewashing, no obfustication, just pure plain 'ol truth.

Get the forks ready, the enablers are DONE!!

There will be hilarious backpeddling, stuttering, and sweating.

Duke 3: Let the civil suits begin!! Sue anyone and everyone for everything from false accusation to slander and libel. Do not settle; take it to court...The PEOPLE'S court!!!!

Oh yeah....Truth does not discriminate.

AWW YEAH! POWER POST!

Anonymous said...

DUKE 3: SUE ANYONE AND EVERYONE FOR EVERYTHING AND LEAVE THEM NOTHING!!!

FOR ON 6/12/07 THEY WILL ALL DINE IN HELL!!!!

-King Leonidas

Anonymous said...

I still dont get how the accuser seems to be getting a pass in all this.

Roy Cooper shouldnt be AG of anything much less governor

Anonymous said...

What was the quote, "You messed with the wrong families, and you'll pay for it every day for the rest of your life."

Anonymous said...

That's sounds like the correct comment from Mrs. Evans. I pray for her every day to have the fortitude to continue when it no longer has to be her problem. I'd be thrilled if the families involved choose carefully the most likely to pay out and loose their status and career opportunity as their law suits. Duke should be on the list for renumeration at least, there won't be apologies or changes otherwise. Duke will go on as it has long after this fades. The description of the Philadelphia conversation says it all. Pres Broadhead and his entire staff do not think they did anything wrong. The boys had a party which caused the whole problem to occur > that's the position.

Anonymous said...

12:07--
I suspect the answer to your question lies in the sealed medical records. The woman has a long history of serious mental health issues, and Cooper said that, even as her stories became more fantastic and unbelievable, she appeared to believe they were true (and appeared not to understand that they contradicted previous stories). Under the circumstances, it might be very hard to prove that she knowingly filed a false complaint or perjured herself--because while they could prove what she said was not true, they couldn't prove that she knew it was not true.

Anonymous said...

.50 says Nifong resigns tommorrow just before 5:00pm.

Anonymous said...

oops. tomorrow

Anonymous said...

Broadhead is a jack@ss....As soon as the FONG is done, he and ALL the enablers have nothing to fall back on...the safety net is gone, and Freedom of Speech does not protect against libel and slander...and the G88 did just that in their PUBLISHED STATEMENT!!! hahahahaha!! and Broadhead still defends them...They must be blackmailing him...either that or he is just plain stupid...If Richard Jewel can sue and win so can the duke 3!!!! I love it when a plan comes together....!!!!

Anonymous said...

"If Richard Jewel can sue and win so can the duke 3!!!! I love it when a plan comes together....!!!!"


I hope you are correct in your statement. IMO. I think winning a suit in Durham is 50-50 at best considering the jurors would be some of the same enlightened voters who elected Nifong.

Question for someone with NC legal background.

Is there any real possibility of a lawsuit that would be adjudicated in a venue other than Durham?

WestToast said...

Every lawyer knows the difference between the bored, lazy, useless judge that never reads the papers; never applies the law; never acts like a judge...and one that does.

About 1 good one in two mediocre ones is average. Rarely is there accountability for the lazy or incompetent judge. But there is in this case!

How refreshing it is to see a law professor (Coleman) and a judge (Smith) that actually remembered to take their jobs and the administration of justice seriously. Worth their weight in gold.

Anonymous said...

JLS says....,

re: Anon 9:25

Questions:

1. What are the perceived benefits of this system? It sounds to me like a recipe for disaster as there would be no continuity throughout a case with different judges presiding at different times.


The preceived benefit is that the cases were reportedly taking a long time to come to trial. So NC went to this case management system to try to cut the backlog.

2. Who decides which cases will be put into the case management system?

All cases are in the case management system. A very very very few are removed from the system. BTW, the DA controls the case management system.

3. Why would a case with such serious charges and the probability for a prolonged trial process as this one be deemed suitable for such a process (see # 1 above)?

All cases are deemed suitable. See the answer to two above.

4. Do other states have a case management system or is this another NC anomaly that guarantees a justice system that rewards chicanery, similar to the non-recording of Grand Jury testimony (I still can't believe NC can get away with that in the 21st century -- North Carolina aka Rubes R Us).

I am not an attorney but I believe this is an NC only system. I believe reforming the case management system that unbalances the balance between the judge and the DA. An NC DA can penalize a Judge that rules against him by assigning him boring misdemeanor cases. This is also in my view why Nifong thought he could get away with what he was doing in this case.

I hope you get to read this.

Anonymous said...

Why is Smith getting a pass?

"The hearing was recessed without completion" ... so that's why I left those guys twisting in the wind for another 6 months.

How lame is that?

Smith is no hero. He was simply, at long last, pressed to step up by the media, public momentum, and Nifong himself. What indication do we find that he would ever "potentially act" in the absence of those pressures?