Monday, November 27, 2006

The Bar's Lax Ethical Standards?

Like most states, in North Carolina the bar adjudicates allegations of attorneys’ ethical misconduct. Since we know that complaints have been filed against the “minister of justice,” at some point, Mike Nifong will appear before the bar’s Disciplinary Hearings Committee (DHC). Indeed, the N&O’s Steve Ford recently argued that voters (and, apparently, his paper’s editorial board) should defer to the bar in cases of ethical improprieties, and refrain from either removing or (apparently) heavily criticizing unethical prosecutors, lest doing so undermine the integrity of the system.

In recent years, North Carolina has experienced two high-profile cases of prosecutorial misconduct. The DHC’s resolution of these cases raises serious concerns about the bar’s commitment to rooting out unethical behavior among its membership, calling into question the wisdom of Ford’s preferred solution to the Nifong affair.

The first, and best-known, case involved the prosecution of Alan Gell, fallout from which triggered the state’s Open Discovery law. The prosecutorial misconduct was obvious and enormous: in a thumbnail sketch, prosecutors withheld from the defense notes of interviews with 18 people who saw the victim, Allen Ray Jenkins, alive after April 3, the day that prosecutors claimed that Gell killed Jenkins. The relevance of this date? After April 3, Gell was either out of state or incarcerated on unrelated charges, and therefore could not have committed the crime.

In a good example of the flaws in the Ashley/Brodhead/N&O editorial board/state NAACP thesis that the “process” is best served by allowing a procedurally flawed case to proceed to the jury, the Gell jury came back with a guilty verdict, and voted to impose the death sentence. Corrupted procedures beget corrupted results.

In the appeals process, Gell’s representation changed (two attorneys involved in the lacrosse case, Joseph Cheshire and Jim Cooney, were involved in the late-stages Gell defense). The conviction was overturned on appeal, and a new trial led to Gell’s acquittal—though this demonstrably innocent man spent over nine years in prison.

The state bar considered ethics allegations against David Hoke and Debra Graves, the two attorneys who handled the Gell prosecution for the attorney general’s special prosecutions division. (Their boss? Then-attorney general and current North Carolina governor Mike Easley.) Hoke and Graves had taken over the case after the State Bureau of Investigation had completed its investigation and the local district attorney had filed charges against Gell.

Despite a judge’s order to turn over all exculpatory material, Hoke and Graves never even reviewed the entire case file they received from the local D.A. They thus failed to provide to the defense either the 18 witness statements or the transcript of a phone call between one of Gell’s alleged accomplices and her boyfriend, in which the accomplice contradicted the story that she told police after turning state’s evidence.

The decision for the DHC was clearcut, and the committee found that Hoke and Graves had violated three elements of the state bar’s ethics code:

(a) By failing to produce all exculpatory witness interview reports when the Defendants had a duty under the Rules of Professional Conduct and existing case law to know the contents of the investigation files in the possession of the State and its agents, Defendants failed to make timely disclosure to the defense of all evidence or information known to the prosecution that tends to negate the guilt of the accused;

(b) By failing to verify the accuracy of the assertion of SBI Agent Ransome [the lead investigator] that all of the witness statements that needed to be produced were in fact produced, Defendants failed to make reasonable efforts to ensure that a nonlawyer’s conduct over which Defendants had direct supervisory authority was compatible with Defendants’ professional obligations; and

(c) By failing to produce all exculpatory witness statements as required by both the Rules of Professional Conduct and by the order of the court, Defendants engaged in conduct prejudicial to the administration of justice.

The bar’s punishment? A reprimand—the mildest possible rebuke.

The DHC cited the prosecutors’ “absence of prior disciplinary record” and “absence of dishonest or selfish motive,” and noted that the duo were “inexperienced” in capital cases. The DHC concluded that the prosecutors’ behavior constituted an “aberration.”

To review: Hoke and Graves cared so little about the administration of justice that they failed, before trying a case that could lead to the death sentence, to read their own case files. (Sound familiar?) For this offense, they received a reprimand. Alan Gell received more than nine years in prison.

Carrying the Ashley/Brodhead/N&O editorial board/state NAACP position to its logical conclusion, the “process” worked in this case.


The Hoke/Graves decision was quickly followed by an even more blatant case of prosecutorial misconduct, and an even more dubious decision by the DHC. In 1996, Jonathan Hoffman was sentenced to death, based largely on the testimony of his cousin, Johnell Porter. But the prosecutors in the case, Kenneth Honeycutt and Scott Brewer, never revealed the extent of a sweetheart deal they had cut with Porter in exchange for his testimony. They even altered documents they provided to a judge describing the extent of their activities on Porter’s behalf.

After conviction, Hoffman’s attorneys uncovered the withheld evidence, but they delayed filing an ethics complaint as they negotiated with Honeycutt to get their client’s conviction set aside.

With even more blatant misconduct than the Hoke/Graves case, and without the ability to claim an “absence of dishonest or selfish motive” for their actions, Honeycutt and Brewer seemed certain to receive severe sanctions. But Honeycutt was the elected district attorney of Union County, and Brewer had moved on to become a district court judge. They thus enjoyed considerable influence within legal circles.

In a bizarre move, Superior Court Judge W. Erwin Spainhour effectively attempted to preempt the bar inquiry by issuing a finding of fact that Honeycutt and Brewer knew nothing about the federal immunity agreement. But no evidence existed to substantiate this claim, while considerable evidence suggested otherwise.

The DHC rejected Honeycutt’s argument that Spainhour’s finding should be binding on the state bar. But it dismissed the ethics complaint against Honeycutt and Brewer anyway, citing two grounds that were nothing short of incredible.

First, the DHC contended that the statute of limitations had expired for the State Bar to even investigate Honeycutt and Brewer. It creatively interpreted a State Bar rule that seemed to give both the State Bar and defense attorneys a year from discovering misconduct to pursue a complaint. Instead, claimed the DHC, the one-year clock started when either defense lawyers or the Bar discovered misconduct.

This ruling effectively gutted the State Bar’s ability to independently file ethics complaints. In almost all cases (the Nifong fiasco is an exception), defense attorneys will discover possible ethics violations long before the State Bar. Under Honeycutt, defense lawyers will have to make the choice that Hoffman’s attorneys did: do they file an ethics complaint, knowing that doing so will permanently alienate the prosecutor and preclude possibly fruitful negotiations for their client; or do they keep quiet, knowing that doing so will mean the State Bar’s statute of limitations likely will expire?

But the State Bar had a second grounds to pursue Honeycutt: under the relevant rule, the statute of limitations was waived for purposes of felonious misconduct—the sort of behavior in which Honeycutt allegedly engaged, and also what we’ve likely seen from Nifong in this case.

Under North Carolina’s general statutes, an amendment to the state bar’s ethics rules must be:

(1) certified to the Chief Justice of the North Carolina Supreme Court;

(2) entered by the Supreme Court in its minutes;

(3) published in the next ensuing number of the North Carolina Reports; and

(4) published in the North Carolina Administrative Code.

The felonious misconduct amendment was certified by the Chief Justice, entered into Supreme Court minutes, and published into the state’s administrative code. But, due to a clerical error, it never appeared in the North Carolina Reports, although it was slated to do so. Citing this extraordinarily narrow technicality, the DHC invalidated the amendment. It then cited the statute of limitations to dismiss the entire complaint against Honeycutt and Brewer.

Concluding that the bar’s allegations “describe serious prosecutorial misconduct,” the DHC conceded that “such misconduct may go undisciplined is difficult to accept.” The panel also recognized that, “especially in light of the controversy surrounding” the Hoke/Graves decision, its dismissal of the complaint against Honeycutt would have “negative consequences . . . on the public’s confidence and that of lawyers themselves in the capacity of the legal profession to regulate itself.”

That prediction proved prophetic. Ruth Sheehan lamented that the DHC’s record, she lamented, seemed designed to ensure “the bad-guy prosecutors getting off scot-free.” Former Superior Court Judge Tom Ross expressed alarm at the trend, noting “From my perspective as a lawyer and judge, the adversarial system has gotten to the point where winning is more important than justice.” (Sound familiar?) Indeed, according to an article by Joseph Neff in the N&O, “the State Bar has not suspended or revoked a prosecutor’s law license, the most severe punishment it can exact. Shame has been the only punishment.”

To review: Honeycutt and Brewer cared so little about the administration of justice that they willfully and dishonestly manipulated the system to bring about an unjust conviction. (Sound familiar?) For this offense, they received no punishment. Jonathan Hoffman received more than seven years in prison.

Carrying the Ashley/Brodhead/N&O editorial board/state NAACP position to its logical conclusion, the “process” worked in this case.


The bar giving a pass to Honeycutt was the DHC’s last high-profile decision before Nifong launched his full-scale assault on the bar’s ethics code, beginning on March 23. There are, however, three differences between the Nifong case and the two cases cited above:

  1. Nifong’s misconduct has received extensive national attention, most spectacularly in the 60 Minutes broadcast, and has essentially become the national image of North Carolina “justice.”
  2. Nifong’s support from the state bar appears to be a mile wide and an inch deep: while the silence of North Carolina lawyers regarding his misconduct has been notable, Nifong’s public support from attorneys has been confined to scattered figures associated with either the Durham defense bar (which has to deal with his office) or the state NAACP (which has used his crusade to turn its back on 70 years of principles associated with the organization).
  3. Nifong’s misconduct has been multi-faceted, unlike the other two cases, which involved only one major violation.

These three factors make it more likely that the Bar will move aggressively—at some point—against Nifong. Also, perhaps the legislature will adopt a permutation of the “three strikes” rule common in sentencing guidelines. If the bar punts on punishing Nifong after having already given a pass to the Gell case prosecutors and to Honeycutt, the legislature could create another body to regulate North Carolina lawyers’ ethical conduct.

But even if it is somewhat more likely the Bar will act against Nifong than it has in other recent cases of prosecutorial misconduct, the record of the Gell and Honeycutt cases renders dubious the N&O editorial board’s breezy assertions that we can count on the Bar to do the right thing, to such an extent that the general public and editorialists should look away from Nifong’s misconduct.


Anonymous said...

It is quite interesting to note Governor Easley's role in two of these outrageous cases. He appointed Nifong and refuses to speak out on his appointee's misconduct. Apparently, Easley believes the voters in North Carolina don't pay attention. Where are the state's U.S. Senators and Representatives in this case? What about it, Senator Dole?

Anonymous said...

What a joke. I'm a law student and I had Professional Responsibility last semester. It's a required class and you have to take and pass a separte exam - the MPRE (Multistate Professional Responsibility Exam) along with the Bar exam to be admitted to the bar.

In school, they make a big deal out of the ethical canons that lawyers have to adhere to. I'm beginning to think the whole thing is a bunch of crap though. A slap on the wrist for railroading someone onto death row? Please.

Frankly, this case and Nifong's actions are eroding my confidence in the legal system and are making me seriously question things. What is the point of having all these ethical canons and legal procedures? It seems like you don't have to follow them if you don't want to. Prosecutors are free to pull any stunt they want - even to the point of committing felonies and no one does anything about it.

It seems like the law they teach you in law school is just a bunch of theory. The law in practice is something else all together and it's not very pretty. It seems to amount to nothing more than politics. I have to wonder how many innocent people are in jail and on death row in North Carolina because the state bar refuses to do anything about misconduct.

Anonymous said...

Thanks KC

Another great post.

Many of us are hoping for a change in the outcomes we've all read about. It would be great to remember Nifong like he was the cure for an illness the State Bar was suffering from.

That would add to his name recognition!

Anonymous said...

In many states, and I don't specifically know about North Carolina, the ethics board spends most of its time suspending or disbarring "small time" lawyers (small time just from the view of the ethics board) such as solo practitioners, and overlooking or forgiving the actions of prominent attorneys including both prominent civil and criminal attorneys.

Anonymous said...

The N&O has a story today in which there seems to be another example of prosecutorial misconduct in a case in which a man convicted of murder is scheduled to be executed soon.


This one involves prosecutors having paid about $5,000 to someone for testimony, although the prosecution claimed in court that it only paid $200. As I pointed out in another comment elsewhere, prosecutors use a dishonest tactic called "jumping on the bus" in which a person is arrested and held in a cell with someone already serving time. Later, prosecutors feed information about the case to the "cellmate," who then testifies in court that the person who had been arrested "confessed" all of the details of the "crime" to him.

When Nifong was able to get $400,000 bond for the Duke 3, I would not be surprised at all of he had "jumping on the bus" plans for them. They were able to post the bond quickly and avoid time in a cell, but do not think for a moment that Nifong would not do such a thing. Already we have seen the things of which he is capable of doing -- because he has done them.

Anonymous said...

K.C., does the American Bar Association have any oversight of its member institutions? If so, should complaints be filed with the ABA as well as the NC Bar?
Texas Mom

The Dude said...

As usual N. caro;ina is living in the past. The 'jumping on the bus' approach has been used numerous times until a 60 minutes show cleared the tables in south Jersey, Pa. and Del. This was in the early 1990's. Now the accussed are well informed on this process and the entire concept was debated in court. People were removed.

In this current case, we have refusal to review their own files and reports. We have low grade Investigators running a MAJOR case with National implications. We have the withholding of Excupable Evidence. We have Nifong making deals with the AV to "FIX" her own cases while putting an independant witness(taxi driver) in jail. We have search warrants issued for numerous people at the same time. Where is the Probable Cause for each specific person? The photo lineups and displays were probably the most blantant in the history of the US. They were not recorded and we only have their word of what happened and what was said.
This could go on for days yet the Judges have no desire to rule on any aspect of the case. Bar associations are Lawyers! Lawyers and/or Judges cover for other Lawyers. It is that simple. No one is distancing themselves from Nifong and thus they all know " ITS IN THE BAG".

Anonymous said...

Bill - The prosecutor in the LeGrande case you link to is the same Honeycutt that KC mentions above.

Anonymous said...

By the way, David Hoke now is the number two administrator in the North Carolina court system and clerks for the Chief Justice of the Supreme Court of North Carolina. Debra Graves is a federal public defender.

Here are two people who deliberately withheld exculpatory evidence -- the very evidence that led to Gell's acquittal in a new trial -- and their lives hardly skip a beat. Think about this: Hoke is likely to be playing a role in the Duke Lacrosse case, since a clerk tends to do a bit more than shuffling papers and getting coffee for his boss. He will have an important role in writing the chief justice's opinions, should this case get to the NCSC.

This is a terrible situation, pure and simple. It is immoral, unjust, and just plain wrong. I fervently hope that the system of justice in North Carolina is not so hopelessly rigged that even the top justices swallow lies and procedural violations, but seeing someone like Hoke so far up the chain makes me very, very nervous.

Anonymous said...


You're absolutely correct that the real world works very differently then what you learn in law school. And you're also correct that the state bar (of pretty much any state) is generally reluctant to hand down harsh penalties in the absence of clear and intentional misconduct. But don't lose faith in legal ethics just yet. The vast, overwhelming majority of lawyers take ethics VERY seriously, with or without the threat of prosecution. As you well know, many, if not most, ethical rules are "should" rules - aspirational guidelines that lawyers aren't bound to follow. Other rules impose firm requirements, but as a practical matter are never enforced. Nevertheless, most lawyers strive to comply. Not only is it the right thing to do, but it's vitally important to a lawyer's reputation. And in the real world of law reputation is valued above all.

For all but the shadiest telephone-book lawyers, referals and reputation are the primary sources of a lawyer's business. Moreover, a solid and well-earned reputation gives its holder tramendous leverage in negotiations and with the court. (In law school I once worked for an adjunct law professor who was still practicing. At one point in a the hearing - remember a judge asking the prof what the law was on on a particular point so he wouldn't have to look it up. He then based his ruling on her answer. If she had told the judge anything other than the the absolute truth the other side would have objected, the judge would have done his own research, and my boss would have lost all credibility with the court for the rest of her career.)

The point is that ethics matter a lot, whether the bar enforces them or not.

Anonymous said...

huesofblue, your advice to the young law student was eloquently stated. When reading his post, I could feel his/her disappointment in a system that would barely blink at wrongdoing on the part of someone sworn to uphold the law. As for NC, I am a resident and ashamed at the mere thought that such crooked and corrupt behavior could barely get the attention of the NC Bar. If only the mainstream media would do an expose on this facet of the story it would put Gov. Easley and the Attorney General on notice that should they seek higher office (which they are rumored to be contemplating), they will have to answer some serious questions about this case and others where they knew about the criminal conduct of the state's prosecutors.

Anonymous said...

The legal System 'looks after its own'. They write the laws that rein them in, and they adjudicate them as well.

Nifong knows it, and he has nothing to worry about.

The only recourse against Nifong is the "Court of public opinion", so keep up your good work KC - Only blogs such as yours are getting the job done - the 'established press' might pile on afterwards, but they are not going to get us there.


Anonymous said...


In fairness, being a clerk to a state supreme court judge is a long way for Hoke to fall from being a prosecutor. He's an aministrative clerk, not a judicial clerk. That means he's in charge of scheduling, not researching case law and writing opinions. It's like a discraced CEO working as the head of facilities management or as the chief administrative assistant at his old company. He's working hard to redeem himself in the new role (which is why he's risen to number two), but the stigma of that past misconduct will always follow him.

As for Graves, working as a federal public defender is penance. The job doesn't pay much, you deal with the worst society has to offer, and all the world hates you. The sole upside is that once in a blue moon you manage to get an innocent person set free or score a victory against improper procedure. It's a tough row for anyone to hoe, and I imagine that Graves is doing it to make peace with

This was a case where they should have read the case file and didn't. It's inexcusable negligence, but it's not intentionally maliscious. I suspect they got handed the case by the previous prosecutor with the assurance or assumption that discovery was complete. I'm guessing they went to trial with little preperation , based mainly on the summary at the top of the file. One of my best friends is a prosecutor, and was telling me about a misdemeanor vehicular manslaughter case a couple months ago where she didn't get the file until the morning of trial. While I can't excuse the negligent prosecution mounted by Graves and Hoke, I do understand how they could make the terrible mistakes that they did in light of stories I've heard from prosecutors like my friend.

Given their clean records and the lack of evidence of intent, I'm not convinced that justice demands their disbarrment. Both seem to be doing what they can to make amends. I don't expect they'll ever repay their debts, but I wish them the best in their efforts to try.

Anonymous said...

Excellent post. I believe the spotlight on this case will leave the Bar no choice but to act. As I mentioned earlier, I've been told something will happen before Christmas. We'll see.

AMac said...

huesofblue 9:37am --

Your points about the circumstances of Hoke and Graves inheriting a case file are relevant. But they were prosecuting a death penalty case.

Death. Penalty.

Going back to Law Student's 1:36am comment: if there is a general point, it is that a System cannot rely soley on the ethics and performance of the people in it. Even if participants' ethics are generally high, and their performance is generally excellent.

Sooner or later, for one reason or another, something will go wrong. People are flawed, and fallible, and prone to rationalizations.

Among procedures I am familiar with (IANAL) are the peer-review process in publishing in scientific journals, the FDA's rules for drug applications and clinical trials, evaluation of tenure-track faculty, and hiring and firing employees in small-business settings. Each of these systems has problems--in some cases, big problems. But I think it's widely understood that increased reliance on the uniform excellence of administrators is not a recipe for improved performance.

It sounds as though the N.C. Bar needs more solid procedures as much as it needs better-performing members in administrative roles.

Anonymous said...

I cannot know a person's heart (except for Nifong, which is non-existent), so perhaps Hoke and Graves made honest mistakes. However, I do know that Hoke WAS in possession and had knowledge of the taped conversation in which the star witness for the state told her boyfriend that she had made up her tesimony out of whole cloth.

And if the State of North Carolina is that cavalier about its pursuit of death penalty cases, then that tells me something about the state of justice there.

I really am not trying to get on a high horse here. It is just that I cannot imagine a prosecutor trying to have someone killed by the state who is sloppy and careless and who simply ignores exculpatory evidence. This represents a way of thinking with which I am not familiar.

Anonymous said...

I would add that intentional or not, the actions by Hoke and Graves were so damaging to the life of another person that they should have had their law licenses revoked permanently. If I am a truck driver and I make a careless error, my license is taken away. Why do prosecutors, who do even more damage, get off only with reprimands? These are people who will prosecute anyone, even if intent is not a factor, yet we are supposed to show greater mercy to them?

Anonymous said...

The NC bar has already fallen down on the job in this case by failing to rule in a timely manner on the complaints it has had for many months concerning Nifong's prejudicial pre-indictment comments to the press. The propriety of those comments under the Rules of Professional Conduct does not depend in any way upon how the charges in the criminal case are ultimately resolved. By ruling on the complaints it received about those comments in a timely manner the Bar might have given the Durham citizenry some insight from an authoritative source into the fitness of their DA to hold office, before those citizens had to cast their votes. One can only hope that the NC Bar will redeem itself and its role in the history of this case when it does eventually rule on the complaints before it.

Anonymous said...

I am not an attorney, much less a Proscecutor, but I have been around enough to get the impression that they are used to dealing with folks who are guilty of something, in nearly every case they deal with. Most bad crimes are commited by the same slice of the population; few people just decide out of the blue to rob a convenience store as a one time thing. Crime is very much a lifestyle and so DAs can tell themselves that it does not matter ultimately whether a bad actor is sent away for the precise thing he or she did. This is not really OK, IMHO but I believe such ideas helps DAs to sleep at night.
The not-OKness of all of this starts with the concentration of power in the hands of mere human agents to a degree that is profoundly dangerous. I do not believe that Nifong really believes that the Duke LAX team is made up of habitual rapists such that picking any 3 to make an example of would pass somekind of smell test. But even if he did and it was the truth, the temptation to use such power for wrong reasons is more than human nature can be expected to resist.
When the targets of this kind of legal percecution are demonstrably not living a criminal lifestyle the picture is quite chilling. Nifong is saying, "I can do this sort of thing to anybody. So don't cross me."
The interesting thing about America is that a significant portion of us hate that sort of thing enough to get involved and stay in the fight until a stake is driven thru the heart of the of beast.
Nifong forgot where he lives.

Anonymous said...

Nifong would have been an able prosecutor for Joseph Stalin.

Anonymous said...

the bar does a great job of protecting mediocrities--and, let's be honest, that's what most lawyers are

Anonymous said...

"The state bar considered ethics allegations against David Hoke and Debra Graves, the two attorneys who handled the Gell prosecution for the attorney general’s special prosecutions division. (Their boss? Then-attorney general and current North Carolina governor Mike Easley.) Hoke and Graves had taken over the case after the State Bureau of Investigation had completed its investigation and the local district attorney had filed charges against Gell."

What does it take to get the SBI to investigate and/or for the attorney-general's special prosecutions division to take over a case?

- JC

Anonymous said...

It would help if we didn't have a state run by only one party, who's first rule is to protect itself above everything else. Power corrupts.

Anonymous said...

We can hear the top brass saying things like "we have to protect the integrity of the system, blah, blah, blah." Let's face it; the people in this system -- prosecutors AND judges -- protect each other.

Furthermore, the North Carolina Bar is not interested in making prosecutors, judges, and prominent lawyers look bad. Nifong has stepped -- nay, bounded -- over every boundary set up to ensure some sort of fairness and decency in the system, and all we hear from the people that matter is "the voters made the right choice."

I must admit that it is frustrating standing out here, watching shot after shot bounce off Nifong, and him getting away with this destruction of law and justice. And the shots bounce off because that state gives him the power to do what he damn well pleases with no chance whatsoever of any meaningful consequences.

Perhaps North Carolina lawyers reading my comments might be able to enlighten me, but from my perch, all I see is Nifong getting away with lies and false prosecutions, and knowing full well that he is absolutely immune to anything but criticism from people like me -- who really cannot do anything but yell and holler.

Now, I would love to see someone in authority in that state do something, but I guess that just is not going to happen. Welcome to Amerika.

Anonymous said...

It seems past the time that the legislature set up a separate agency to take attorney discipline away from the bar association.

Anonymous said...

The Democrat legislature and the Democrat Governor and the Democrat Attorney General will NOT do anything against Democrat Nifungu. Can I make that any clearer? Do you see the pattern here??

Anonymous said...

Oh, I forgot, and the Democrat Judges won't either!

Anonymous said...

I wish it were easy enough just to dismiss this whole thing as the mess of one political party. Now, it is true that in North Carolina, Democrats needs the support of blacks and white liberals and leftists to win elections, and the constituencies that want this farce to continue are blacks and white liberals and leftists.

However, I do not recall any Republicans in this past election in North Carolina or elsewhere raising the roof over this prosecution. No, Republicans did not want to be associated with Animal House culture or to be seen as being "racist."

True, in this situation, Democrats are looking out for one another, but until the Republicans openly decide to make this a case, we are left with people like us who are on all sides of the political spectrum, but united in that we hold the principles of justice seriously.

I am sure that K.C. and I would disagree on some things politically speaking, but I can also say that I have no disagreement whatsoever with how he has gone after this issue. The difference between people like K.C. and much of the Duke faculty is that K.C. takes his scholarship seriously, and is a true liberal, not one of these "God is the State" liberals who have been driving this insane persecution.

Anonymous said...

Bill anderson wrote:

"If I am a truck driver and I make a careless error, my license is taken away. Why do prosecutors, who do even more damage, get off only with reprimands? These are people who will prosecute anyone, even if intent is not a factor, yet we are supposed to show greater mercy to them?"

I think it's more appropriate to compare a prosecutor to a surgeon. Negligence happens in both professions, and when it does the consequenses are often dire for the patient/defendant. But for both professions it takes really egregious conduct to warrant revoking a license.

There are a lot of reasons for this. One is that mistakes are inevitable. Doctors and lawyers try to avoid them, but every year they happen in thousands. Maybe a doctor leaves a sponge in or maybe a prosecutor sticks a folder in the wrong file at 1:00 a.m. and it never gets sent out with discovery. They're not likely to lose their license in either case. But that's not to say there aren't consequenses when that misconduct comes to light. The doctor might get sued or lose his position at a hospital. The prosecutor might get fired or knocked down to handling traffic tickets and misdemeanors.

Where the consequenses are mild, it's usually because mistakes seen as part of professional growth.

Additionally, governing boards don't want to discourage risk taking. There are times when we want doctors to perform risky surgeries and times when we want prosecutors to bring cases they might well lose at trial.

Finally, the governing bodies don't want to discourage people from performing necessary services under higher-risk circumstances (like prosecutingin an under-funded district where the case loads are far too heavy or working in a poor hospital that lacks the diagnostic resources and manpower of more upscale facilities ).

Because of these factors, the licensing boards usually look for evidence of conscious malice, recklessness, or some pattern of repeated negligence before they act.

Maybe the bar should be disbarring and reprimanding prosecutors left and right. But if they did, I suspect the caliber of prosecutor would drop dramatically and only the most straightforward cases would ever be brought to trial. The pace of prosecution would slow to an excruciatingly diligent, but also excruciatingly slow, crawl. And both the public and the legal profession would suffer.

I'm not arguing that the system is perfect, or even that it should be maintained. I'm just trying to lay out some of the reasons why the current system might be the way that it is.

Anonymous said...

How can the character of prosecutors get worse than what it is in Durham?

Anonymous said...

My daughter takes Professional Responsibility next semester and I'm printing out and linking lots of K.C.'s posts for her. Horrifying!

I keep marvelling at the incestuous relationships of the political/legal oligarchy in the state of North Carolina. I do believe that Mssrs. Easley, Hardin, will eventually pay attention only when they begin to worry that their national political futures will be affected by their present inaction. The national media loves to skewer politicians and the Internet allows for increased attention to detail. I would suggest that the lawyers in North Carolina begin to act as though they are part of the rest of the United States.

Anonymous said...

To 3:09 and 3:10...
which is why we have federal agencies that investigate when it appears individual states are violating civil is the case here.

Where the heck are they? The federal agencies do not depend on the black vote in Durham. Is anyone aware if any formal complaints have been filed with the office of civil rights, US Dept of Justice, etc?

Anonymous said...

Think of an agency full of Nifongs, and you have the U.S. Department of Justice. If you think Nifong is creative, you should see the work of federal prosecutors.

I seriously doubt that the feds will involve themselves in this one. It is not a political winner; if the defendants were black, it would be a better political sell, as the NY Times would be behind the DOJ.

Maybe I will be proved wrong, but I do not see any chance of the feds becoming involved in this case.

Anonymous said...

So what you are telling us is that approximately 15% of the people in this virtue of being of a specific minority...essentially controls the remaining 80-85%?

Actually this is a rhetorical question as most people know the answer. What a sad state of affairs.

Anonymous said...

No, I would not say that. What I am saying is that if the DOJ were going to intervene in the Duke LAX case, the political benefits would not be very good. First, it would be a case of "Republicans protecting whites," and the NY Times would not approve.

Second, it would be seen as federal interference in the affairs of state governments.

Third, the case is portrayed as wealthy white boys having the resources to afford high-priced lawyers that can "get them off." Like it or not, that is the perception that would be pushed in the mainstream press. The NY Times is not going to back of its original theme, no matter what the facts.

Now, I do not believe that this country somehow is "controlled" by minorities. I am just saying that a high-profile case like this would conjure up images that the DOJ would like to avoid. Think about it: If you were a Republican federal prosecutor, would you rather be seen as riding to the rescue of a mistreated black person or mistreated white person? That is the political reality, and that is why I say that the feds will not be involved.

Look, if I were the U.S. attorney in Raleigh, and were a political animal -- as many of these guys are -- I would be leery of such a case because I would be called a racist if I chose to intervene.

Anonymous said...


I think you hit the nail on the head, essecially on seperation of powers. The federal government is generally very reluctant to get involved in state prosecutions, because doing so essentially divests the state court system of control. The feds are going to give the NC courts the first crack at ruling on the line up and the case in general.

Since the odds of a conviction in this case are next to nothing. I don't think the feds are chomping at the bit to step on all sorts of state toes just to save the defendants some legal fees. Nifong may be a rogue prosecutor here, but college students aren't a constitutionally protected class and the sort of systematic misconduct across multiple cases that would generally warrant federal attention is lacking.

If the NC courts convict, and all of the appeals are exhausted at the state level, the defendants will be able to turn to the federal courts. Until then, it's going to be in NC state hands.

Anonymous said...

I guess I did not mean that in the literal sense that a minority of people may dictate to the majority. But I think your last sentence sums up my concern or frustration...that there is a "controlling presence" which causes well-intentioned people to avoid or ignore taking the proper action or righting a known wrong, simply in order to 'please' a specific class of people. For example: Is it better to ignore the plight of these boys--because they are privileged--so we don't anger a group of people that have no connection what-so-ever to the case?

I guess I just don't see how any federal agency can, in the pursuit of supporting diversity and racial peace, allow the potential wrongful conviction of three young men, regardless of their race and socioeconomic status.

Anonymous said...

I agree that the Feds should intervene, they still might. I discussed this with a former US attorney, now Federal Judge, who said they have very specific guide lines about making any Federal Case before an election, that is why they did not indicted our current NC Speaker of the House before the election, the Democrat is ahead in his election by 9 votes and there is a recount. Same thought about Nifungu, they would not act until the trial is over or dismissed.

You seriously underestimate the power of the Democrat party in NC in protecting their own. I served in the NC House, obviously not as a Democrat, and I was amazed at the corruption(They did give good parties though). We have a congressman now in prison for bribery, we have a Speaker of the House who's sec has been indicted and his Legislative assitant has been found guilty of conspiracy, and a former Republican legislator turned Democrat that has admitted under oath that he took $50,000 to change parties, to the Dem's and that the Speaker was the co-conspirator.

Had enough? It would take too long to list all the corruption, trust me 2/3 of it is never discovered.

Tammy Hall would be proud!

Anonymous said...

I just want to say something to the law student who was disillusioned about the apparent gap between the rules of professional conduct and their actual application by state bars in the real world.

First, most state bars do take the rules very seriously. In my own state, Maryland they do. A few years ago, the State’s Attorney for Prince George’s county, an ambitious politician who was recently elected Attorney General of Maryland, was reprimanded for making extrajudicial statements. What he said was mild compared to some of Nifong’s violations of Rules 3.6 and 3.8 and an isolated event. Nevertheless, our Court of Appeal took it very seriously and was not afraid to call him on it. In light of KC’s article, I am going to try to write up a brief post about it on the FODU site sometime tomorrow. It helps put Nifong’s conduct and what the North Carolina Bar should be doing about it into perspective.

Second, do not ever tolerate violations of the rules and do not suffer others to do so. Every law school teaches professional ethics because it is an important subject, one in which the faculty believes very much, and not because some states require the MPRE. If your state bar does not take them seriously, speak up and get involved! I encourage you to talk about KC’s article and some of the other posts that talk about how bar grievance committees often have different standards for big and small timers with your classmates and professors and think about what you can do. Part of being an ethical lawyer is making sure others follow the rules and that those rules are properly enforced. Sadly, issues such as the ones described here are ones you might have to confront in your professional career. If so, confront them you must and not just go with the flow. If you can do one thing for your state bar and for the community at large, working to ensure adherence to professional ethics, particularly in the criminal justice context, would achieve the most good.

Anonymous said...

Me again. Here is a link to a letter written by Brad Bannon condemning the way that the Grievance Committee in the Gell case simply went through the motions in trying Graves and Hoke: Not only did the state bar give them a ridiculously light sanction, it apparently failed to develop a record of the full extent of their misconduct.

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Anonymous said...

All the laws, codes and procedures that must be followed are worthless unless the people who have been given the power to see they are obeyed are honest and seeking justice. It's about corrupt elected officials who are politically motivated with no concern for the law or fairness or justice. There have always been corrupt public officials and there always will be. What has opened up the eyes of millions of people around the world and has scared so many Americans is that in their very own country, this corruption goes so deep, especially in NC that there are no checks and balances in place. Governor Easley should have stopped this from the get go, the NC Attorney General should have looked over the evidence Nifong had before false indictments, the NC Bar should have reined in Nifong early on. All of these powers failed because they are politically motivated and corrupt themselves. When these boys names are cleared, the Federal Government must put in place legislation allowing them to step in when a state acts so irresponsibly, egregiously, and allows a renagade DA to persecute without any evidence. The world knows these boys are innocent of all they have been accused. What the world wants to know is what is the Federal Government going to do about those that govern the State of NC? How are they going to be held accountable for allowing this to continue. This case will not simply go away. There are answers that are demanded by all citizens who pay their taxes and expect the Constitution to protect their rights. Governor Easly has alot to answer for. The Attorney General has alot to answer for. Nifong and the DPD must be held accountable for their criminal behaviour. The NC Bar must answer why they have done nothing to date. The Duke 88 have slandered these young men and their families and should be held acocuntable for their rampage. It doesn't matter what kind of laws, codes or rules you have either in government or at a University, if you put them in a cracked glass they leak out. Right now the legal/judicial system in this country has a major crack in it. It won't take a bandage to repair. Corruption and the massive prosecutorial misconduct exhibited by Nifong and the DPD simply will not be tolerated anymore by the citizens of this country. It has also gotten to the point where there is reverse discrimination and racism. Its o.K. for the AA to use the "N" word and call white people racist names, but God forbid a white person retaliates, it is all over the news. And the white race is to politically correct to speak up for themselves and condemn the AA community for calling them names and will jump on the band wagon with morons such as Al Sharpton and Jesse Jackson who seem to think the AA community should have immunity from everything. Perfect example is the recent attack on Michael Richards, he said the "N" word to someone and now he is being sued for $10 million dollars, he has apologized numberous times and Jesse Jackson and Al Sharpton don't accept it. Get over it. No one owes the AA community anything. The door swings both ways. Their is racism in every nationality, prejudice in every religion and sexual orientation. It is the riduclous responses such as the Duke 88 to the racism that sets us back 300 years.

Anonymous said...


As a NC resident who has observed the NC Bar in action I think it is completely safe to say they are loath to remove the license to maintain a livelihood of any practicing lawyer in this state. I believe the vast majority of disbarments are due to attorneys skimming money from their clients' trust accounts. the next category for disbarment is conviction of a felony, although it isn't unheard of for the attorney to regain their license in a few years. I don't have the facts to back this up, but I don't recall cases where material lapses in ethics have led to disbarment. Perhaps someone can query the NC Bar on this. My conclusion is the Bar serves to protect the status quo.

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