Saturday, January 31, 2009

Responding to Nifong

The falsely accused players’ attorneys have filed a response to the 11-line motion to dismiss penned by Nifong attorney Jim Craven.

It makes two major points. First, while Craven and Nifong asserted (in lines four and five) of the 11-line masterpiece that the players had not stated a claim against Nifong for which relief could be granted, the players’ attorneys note that the allegations against Nifong include the disgraced ex-DA’s “involvement in the fabrication of false inculpatory evidence, the concealment of evidence of Plaintiffs’ actual innocence and the lack of probable cause against them, the intimidation of witnesses, and the making of false and inflammatory public statements regarding Plaintiffs’ supposed guilt—all of which resulted in the wrongful seizures of the three innocent Duke students and caused them to suffer substantial economic, emotional and physical harm, irreparable reputational harm, and millions of dollars in legal fees.”

Those, in short, would be claims under relevant federal and state laws.

Second, while Craven and Nifong asserted (in lines seven, eight, and nine) of the 11-line masterpiece that Nifong had absolute immunity, because all of his actions “were done in his role as District Attorney,” the players’ attorneys noted that “the mere fact that a defendant holds a prosecutorial title or position at the time of his alleged misconduct does not mean that he is entitled to absolute immunity. Citing a variety of Supreme Court precedents, the response brief concluded that “Nifong is liable for his investigative misconduct and false public statements in the same manner as any other law enforcement officer.”

In a timely reminder of this doctrine, the attorneys cited the Supreme Court’s just-decided Van de Kamp v. Goldstein, which explained that “absolute immunity does not apply” for a prosecutor’s “investigative . . . tasks.”

Essentially, Nifong performed three roles in the lacrosse case. First: from April 18, 2006 (the day he obtained indictments) until January 12, 2007, he served as the (corrupt, unethical) prosecutor in the case—for which he was disbarred and jailed for criminal contempt, but for which he cannot be sued under the doctrine of absolute immunity for prosecutorial functions.

Second: from March 24, 2006, when his DPD superiors instructed then-Sgt. Mark Gottlieb to take orders on the investigation from Nifong, until May 15, 2006, when he completed his investigatory work with then-lab director Brian Meehan, Nifong served as the de facto lead detective on the case. He revived this role periodically between May 2006 and January 2007, usually when he ordered henchman Linwood Wilson to “re-investigate” the case to develop new “facts” that conformed to whatever theory Nifong happened to be supporting at the time.

Third: between March 27, 2006, when he began his pre-primary publicity crusade, and mid-April 2006, Nifong served as the de facto public spokesperson for the Durham Police Department, regularly briefing the local, state, and national media on the progress of the “investigation” and the state of the “evidence” that the Police “investigation” he supervised had allegedly developed.

The 11-line brief filed by Jim Craven contended that Nifong is entitled to absolute immunity for all of these actions, apparently because all of these actions were proper prosecutorial functions. Perhaps if Craven had devoted more than 11 lines to his brief he could have provided a few facts that might have supported this argument. But as things stand now, as the players’ response brief points out, in claiming that the discredited ex-DA is entitled to absolute immunity for actions he performed in supervising the police investigation or serving as DPD de facto spokesperson, Nifong and Craven want a federal district court to overturn multiple Supreme Court precedents. That’s not likely to occur.


Anonymous said...

Who will make a ruling on the Craven brief? Is this Judge an elected Judge in the North Carolina system?

af said...

Come now, Professor. How could Craven possibly provide more rationale than he delivered in his 11 line response. If one's actions are indefensible, then throwing around flowery words won't make your actions defensible. He's a moron who happened to believe that his bathrobe was teflon and that he couldn't be touched. 11 lines is more than ample space to sum up Mikey's rationale for why he can't be sued. It's sort of a Rod Blagojovich excuse. Blago vs Blobbo. One is as rational as the other.

jamil hussein said...

I've realized that UPI is going to be (at least) a trilogy. I'm especially looking forward to "UPI III: The Return of the Dark Lord" about Nifong's return to power (as a leader of powerful prison gang / appointed senator) and his fall from the power again.

Anonymous said...

Perhaps Craven responded with an 11line brief because he and Nifong know that:

A.) the suit will not go in their favor and

B.) the plantiffs will never collect a dime from a "dry well".

It also follows that Nifong probably couldn't afford more than 11 lines of response.

Anonymous said...

Folks, even discounting for the sheer political cess-pool that is Durham (and Duke), from a strictly legal standpoint, this isn't really even a close call on the full merits. For the particular motion at issue here--a motion to *dismiss*--again, in all seriousness, this litigation will go forward. Not even "Dur'm justice" is pathological enough to stop the Justice Train at this point. Too many people--and too many "outsiders (including us "Northerners")--are watching how the Lax Hoax end game plays out.

Anonymous said...

Great commentary, K.C. This really is becoming a "no contest" event, just like the state bar hearing of nearly two years ago. Duke has spent millions of dollars for a defense, and all the high-priced lawyers can do is to claim that Tara Levicy was "reporting a crime."

Well, if Levicy were reporting a crime, she would have been turning herself in. As for Nifong, the man is toast. Because he is such a rotten person, and because he has no conscience, I almost will enjoy watching him go down.

Here is someone who reveled in the destruction of other people. Mikey, when you are on your back with the sword at your throat, the people in the stands watching you are going to give the "thumbs down" signal.

One Spook said...

Anon @ 6:47 PM writes:

"Who will make a ruling on the Craven brief? Is this Judge an elected Judge in the North Carolina system?"

Did you mean the craven 11-line Motion To Dismiss filed on behalf of defendant Nifong by attorney Craven?

If you follow the link KC Johnson provided, at the very top of the page it reads, "IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF NORTH CAROLINA" which of course would mean in the United States (Federal) District Court, Federal Judge; not an elected State Judge in the North Carolina State Court.

With the imprint of small keyboard letters imbedded in my forehead, I remain

Yours Truly,

One Spook

Anonymous said...

Is Craven a Communist?

Anonymous said...

I told you already. Craven isn't a Communist.

Craven is a Con Artist.

11 lines. I still can't believe it.


The Plaintiffs' response is very professionally done. It seems the Defendants either don't write anything, or write something factually inaccurate. Looks bad for the bad guys. When does Nifong offer to "flip"? Duke has to be worried about that.

MOO! (My opinions only) Gregory

jamil hussein said...

isn't the right to speedy trial a constitutional right?

Falsely accused are probably retired by the time Duke/Nifong get their chance to prove their innocence in court.

I can't believe how long they can delay justice.

jim2 said...

I never considered the 11-line response as anything more than the cheapest possible a delaying tactic.

Nifong has made the only argument he had. Now, he just seeks to extend the process. After all, he is not now in prison. He retains still at least some patina of the wronged innocent in his little community.

Also, the more time passes, the greater distance from the events and the more the 88-ers and their ilk will cry that it is time for all to moveon, heal, etc.

Anonymous said...

Mr. Jamil Hussein, there's no right to a Speedy Trial for civil litigants, and even for criminal defendants in North Carolina, the prosecution has a means to get around it in Judge Stephens' state court.

Was this even mentioned in the "Race to Injustice" book?


Nifong's motion in this civil case reminds me of his actions in State v. Malloy. In that case, Nifong was the prosecutor in a rape trial. There was little evidence -- besides the complainant's testimony -- that non-consensual sex occurred. Nifong put his alleged victim on the stand. After a short examination, he turned her over to the defense.

The defendant's attorney then proceeded to cross-examine her for hours and hours. After this grilling, which poked many holes in the allegation of rape, Nifong took the witness back on re-direct. His only question was reportedly: "You told the truth about the rape, right?"

Mike Nifong likes to bluster, then his surrender is utter and complete.


MOO! (My opinions only) Gregory

No justice, no peace said...

Inre: 9:52 pm "...Too many people--and too many "outsiders (including us "Northerners")--are watching how the Lax Hoax end game plays out."

With all due respect not enough people are paying attention. That is one root cause that led us to this point.

As citizens of our justice/political system, consumers of education, and witnesses of the decay of our leadership/institutions at all levels, we all have vested interests in the outcome.

Yet we have placed these frauds into the positions of power and now we are reaping the fields we have sewn. Clearly more visibility and demands for transparency are needed.

Anonymous said...

Meanwhile, Duke received a record number of applications this year. This whole thing certainly hasn't tarnished the University's reputation, at least not in any significant way.

Anonymous said...

Meanwhile, Duke slipped 2 spots in USNews' rankings.

No justice, no peace said...

Inre: 12:51, "...Duke received a record number of applications this year..."

Yes and Golden West funded a record number of option Adjustable Rate Mortgage applications. Of course Wachovia took on that loan exposure when they acquired Golden West. Those decisions have meaning. How did those decisions work out?

The number of applicants is really meaningless. As mentioned before there are more students making more applications at most every school.

A more important question is the yield or analyzing the caliber of those who end up accepting AND attending relative to those who turned Duke down.

Has a Duke education become more or less like a toxic option ARM under Robert Steel and Richard Brodhead?

gak said...

Above someone posted that apps are up at Duke. I read on the net that the apps are up but the quality of the applicants are down. It was stated that Duke is a second choice school for a great many.

maltesse3 said...

This explains it all,
parents wondering why they have sent their children off to college and they graduate and still don't have any common sense.
What kind of professional job can anyone get taking a class from this professor?

Michael said...

Applications are up because we're just about at the peak of a demographic bubble. They are also up, especially at schools perceived to have big endowments as a lot of families have been hit by the fallout of the collapse of the banking system and they're looking for as much merit or need money that they can get.

I'd still like to listen to that radio show yesterday. Anyone have a link to it that I can download?

hman said...

Since the day that comprehensive DNA testing ruled out the possibility that Mangum was telling any kind of truth (more than 2 years ago) the Durham-Duke axis has been standing over a void. Duke has spent millions on high class legal talent and they can come up with nothing more than a longer version of Nifongs 11 line rebuttal.
This case has for a long time been a kind of singularity. Real life is not often this clear cut and unambiguos. Here, the bad guys are drooling, rabies infected reptiles and the good guys were mostly not even there while no crime was ever committed.
I thank my instincts for leading me towards the truth about this case from almost the first outburst of sociopathic nonsense coming from M. Nifong. So I frankly enjoy the way this is turning out. Maybe I should not feel that way; or maybe I should.
My distant ancestors were Texas Rangers way back in the olde days. I know how they would have dealt with this kind of violent, naked corruption but I should not say much about that. We live in the wrong century for that sort of thing. Really, as soon as horses were taken out of the equation it became passe to just shoot the bad guys and then tell God it was an accident.
But certain instincts are valuable even in this modern age.

Debrah said...

TO Michael---

I spent all that time listening to the broadcast Friday night and I posted about it.

Too bad it didn't quite measure up to a valuable "critique".

You can go to the link provided and then click on "archives".

In a few days Friday night's show should be available there.

(I do what I can.)

bobo1949 said...

to Michael
The audio of the radio program is contained in the file Uncut Podcast 81. KC's name is shown as Casey. Don't forget, it is the Extension 720 program.

One Spook said...

Thanks, Bobo.

The "Uncut Podcast 81" seems oddly named. It is in fact, cut. I have included the link to it below, but it is only the first portion of the program, which was actually two hours in length.

It appears that the entire program will soon appear at the "Extension 720 Unabridged Link," but it has not appeared to date.

KC Johnson on Extension 720 (First Portion Only)

I'm still trying to figure out the difference between "uncut" and "unabridged" but, let that go ...

One Spook

Debrah said...

This is the better page.

You get both hours.

bobo1949 said...

Unfortunately, the two uncut files (uncut podcast 80 and uncut podcast 81) are only a small portion of the two hours.
Sorry about not posting links but some of us dogs are just too old to teach new tricks.
Hopefully the entire two hours will become available in the not too distant future.

Anonymous said...

Is Duke a state school?