Wednesday, December 13, 2006

The Jones Letter

Yesterday, North Carolina Congressman Walter Jones became the first member of Congress to urge the Justice Department to look into the misconduct of Mike Nifong. With an out-of-control prosecutor, a state bar that’s asleep at the switch, and a governor who appointed Nifong to his post and since has refused comment about Nifong’s behavior, federal involvement is needed.

Such involvement, it’s worth noting, would be extremely rare; the Justice Department normally inquires into prosecutorial misconduct (in the rare instances it does so) after a trial’s conclusion.

This delay, however, occurs for practical reasons: evidence of massive prosecutorial misconduct almost never can be documented before a trial begins, or, in fact, before a post-appellate review has occurred.

The Nifong case is thus exceptional in two respects: (1) the misconduct has come to light months before a trial could start; (2) the misconduct has occurred in the public eye. Federal inaction, therefore, risks undermining public faith in the justice system, by sending a message that all prosecutors are rogues like Nifong.

What constitutional grounds, however, could justify a federal action? Here are five possibilities from the U.S. code.

1.) 18 U.S.C. § 371

If two or more persons conspire either to commit any offense against the United States, or to defraud the United States, or any agency thereof in any manner or for any purpose, and one or more of such persons do any act to effect the object of the conspiracy, each shall be fined under this title or imprisoned not more than five years, or both.

This section normally is used to prosecute white-collar crime. The conspirators, in this case, would be Nifong and Sgt. Mark Gottlieb.

A 1924 decision of the Taft Supreme Court narrowed the exceedingly broad language of this section. In Hammerschmidt v. United States, the Court defined “defraud”:

To conspire to defraud the United States means primarily to cheat the Government out of property or money, but it also means to interfere with or obstruct one of its lawful governmental functions by deceit, craft or trickery, or at least by means that are dishonest.

The “but it also . . .” clause would easily cover Nifong’s actions in the Duke case.

Subsequent Court decisions have clarified the Taft Court’s decision. As the Justice Department’s manual for U.S. attorneys states, acts that “make wrongful use of a governmental instrumentality”—i.e., a prosecutor’s power, misused for the purpose of winning an election—can be constructed as seeking to “defraud the United States under 18 U.S.C. § 371.”


2.) 18 U.S.C. § 1503

Whoever . . . corruptly or by threats or force, or by any threatening letter or communication, influences, obstructs, or impedes, or endeavors to influence, obstruct, or impede, the due administration of justice, shall be punished as provided in subsection (b).

The U.S. attorney’s manual lists how federal courts have defined a “corrupt” action:

· “for an evil or wicked purpose,” United States v. Ryan, 455 F.2d 728, 734 (9th Cir. 1972);

· “with the purpose of obstructing justice,” Rasheed, 663 F.2d at 852;

· “for an improper motive,” United States v. Haas, 583 F.2d 216, 220 (5th Cir. 1978), cert. denied, 440 U.S. 981 (1979);

· “at least in part, by a corrupt motive,” United States v. Brand, 775 F.2d 1460, 1465 (11th Cir. 1985).

This section normally involves attempts by corrupt defendants or defense attorneys to improperly influence witnesses or judges. It gives some sense of Nifong’s misconduct that, it seems to me, little investigative creativity would be required to apply Section 1503’s provisions to Nifong.

The U.S. attorneys’ manual notes that some courts have held that the excerpted clause, or the “catch-all provision,” should “be read broadly to include any conduct interfering with the fair administration of justice if that conduct was undertaken with a corrupt motive.”

For instance, this clause would seem to apply to a prosecutor’s ordering the police to violate their own procedures to somehow get three—any three—defendants chosen so that the prosecutor who had improperly given myriad interviews promising a crime had occurred could charge someone—anyone—before a primary election.


3.) 18 U.S.C. § 241

If two or more persons conspire to injure, oppress, threaten, or intimidate any person in any State, Territory, Commonwealth, Possession, or District in the free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of the United States, or because of his having so exercised the same;


4.) 42 U.S.C. § 1985.

. . . In any case of conspiracy set forth in this section, if one or more persons engaged therein do, or cause to be done, any act in furtherance of the object of such conspiracy, whereby another is injured in his person or property, or deprived of having and exercising any right or privilege of a citizen of the United States, the party so injured or deprived may have an action for the recovery of damages occasioned by such injury or deprivation, against any one or more of the conspirators.

Both (3) and (4) have traditionally involved minorities who have been mistreated in the criminal justice system—i.e., civil rights activists falsely arrested in the late 1950s South. Using either provision on behalf of white defendants would represent a blow for a procedurally color-blind interpretation of federal statutes. While intellectually proper, such a course would entail political risks.

Nonetheless, as Jeralyn Merritt pointed out a few days ago, the Second Circuit just upheld a Section 241 conviction in United States v. Acosta, in which the allegations against former law enforcement officers involved falsifying information to get search warrants, fictitious informant payments, and stealing property from targets of their search warrants. It's not too much of a leap to see “falsifying information to obtain a non-testimonial order” as covered under the Ascosta precedent.


5.) 18 U.S.C. § 1512(b) and (d).

(b)Whoever knowingly uses intimidation, threatens, or corruptly persuades another person, or attempts to do so, or engages in misleading conduct toward another person, with intent to . . . cause or induce any person to . . . withhold testimony, or withhold a record, document, or other object, from an official proceeding;

(d) Whoever intentionally harasses another person and thereby hinders, delays, prevents, or dissuades any person from attending or testifying in an official proceeding;

In the record of the lacrosse case, this section could be called the “Elmostafa Clause.”


The basic message: grounds exist for granting Jones’ request and beginning a federal investigation of Nifong’s misconduct. What’s unclear is whether the Justice Department will reverse its heretofore inexcusably passive attitude.

[Update, 2.09am: The Herald-Sun spin machine is in full force, chiding Jones, in his letter, for citing the 60 Minutes report. “Everything Jones cited in the ‘60 Minutes’ account,” reporter Bill Stagg huffed, “had previously had been reported in The Herald-Sun, The News Observer of Raleigh [sic] and other local and national newspapers.”

Well, it certainly had been reported in the N&O. The H-S, on the other hand, still hasn’t “reported” that Duke Law professor Jim Coleman criticized the lineup procedure. Nor has the H-S mentioned General Order 4077, the Durham policy regarding lineups that Nifong ordered the police to violate.

The H-S also gets a quote from Durham congressman David Price, who stated through a spokesperson that it “would be premature and inappropriate” to comment on Nifong’s misconduct. Price, by the way, is on leave as a professor of political science at Duke. No word yet on whether Price was disappointed his former colleagues failed to ask him to join the Group of 88.]

Hat tip: M.C.


Anonymous said...

Good for Congressman Jones. But where are the two U.S. Senators from North Carolina? Where are the other congressmen and women from North Carolina, Maryland, New York and New Jersey? The Justice Department will need to hear from other members of Congress.

Anonymous said...

I know all the parties. Jones's letter is great but means nothing.
I want you all, a good Southernism, to understand than all things in the South have their time. Don't think for a minute that the US Attorney, whose dad owns one of the largest banks in NC doesn't want to perp walk Nifungu down to the court house, but unlike NYC, we take this shit seriously, and most us attorneys are not running for governor. Nifungu has REALLY f**ked up. He is just now starting to figure this out. Southerns will let him out of the box, if he gives it up,, but he has got VERY little timed to wiggle. When the Bar makes their charges, he is toast. I give him till Christmas, and I think he is too stupid to understand how much trouble he is in. just another dumb unc graduate, oh sorry

My guess, he's an idiot and is going down. Lucky to only get disbarred, cause once they turn on you they're going to pile on.

Anonymous said...


What's wrong with 18 U.S.C. sections 241 and 242? You don't say much about them. They seem the most appropriate to me.

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Anonymous said...

Justice Johnson,

You get an A+ on your reporting. I wouldn't want to debate you in moot court or any court for that matter.


Anonymous said...

you people have got to be kidding--or desperate. Your own review of the criminal codes should indicate the circular bin for this p.r. driven plea from Jones. But I will wait to watch this fall by the wayside, along with the rest of your hysteria.
Incredible mindlessness this all is. But that's what happens when emotions run amok.

Anonymous said...

Could 8:16 be Nifong?

Anonymous said...

Maybe 8:16 is Cy Gurney.

Anonymous said...

I'd add 18 U.S.C. 242 to KC's list (as Newport did). That is the companion to 18 U.S.C. 241 and does not require a finding of conspiracy, just actions by a single individual. While it's true that these statutes have been used historically to protect the rights of minorities, they probably fit better here than any of the other laws mentioned. They are designed to let the federal government intervene when the local political/judicial system fails to accord basic civil rights to a disfavored group. Reverse the races of accuser and accused and it would be a textbook case. And in the end (if the NC justice system continues to fail as it has so far), I don't think that the Department of Justice would be able to justify ignoring a textbook case under 18 U.S.C. 241 and 242 simply because of the race of the victims.

Anonymous said...

8:26 Anon:

Kinda sounds like Yoda to me. ;>)

Way too articulate for cash & cary?

8:16 Anon said:

"Incredible mindlessness this all is."

Anonymous said...

from a non-lawyer: OK, let's assume that at some point there is an active investigation of the allegations of misconduct by Nifong by the feds or the bar association. When does this create a conflict of interest for Nifong so that he has to remove himself from the case or is removed by the presiding NC judge in the alleged rape case? Also I have often wondered if Nifong has been posting on this site. Would such information be fair game in any investigation?

Anonymous said...

Chicago writes:

Kind of funny stuff I suppose. I wrote the following message to Bill Stagg:


When are you guys going to give up your pro-Nifong campaign and actually report on justice? What will it take? What is your motive for spinning everything to make it sound like some criminal act occurred in the Duke Lacrosse case? Your circulation is down, your website is a joke and this morning you exposed that your computer has a broken space bar by posting a storythatreadslikethis.

Wake up! Your paper has become a disgrace to journalistic integrity. Actually it has been a disgrace ever since the buy out occurred and you fired the people who were the very best thing the paper had going for it. You unloaded Bill Wise, Jim Furlong, Featherstone and so many others.

He responded by writing this:

Thank you for reading The Herald-Sun. It’s loyal customers like you who make our job rewarding.

Bill Stagg

I find it some what funny. He has a slight point. After all I was on their website reading it. However, I am not a subscriber. I suppose if I read between the lines what he is saying is that they are so desperate for people to pay attention to them that they have resorted to being shady.

Anonymous said...

As paranoid as he is, I am sure Nifong reads some of this. However, I doubt that he would post on it.

I will be having an article out soon comparing this case to that of the Scottsboro Boys. They are similar, except the races are reversed. Other than that, we have similar medical evidence, lies, and a prosecutor talking about "----- money from New York."

Also, I take on the feminists, including those who post on this and other sites and insist that all that is needed is for us to "believe the woman." If that is true, then they have to conclude that Victoria Price (the main accuser in the SB case) was telling the truth, and the SB case was NOT a travesty of justice.

Anyway, stay tuned.

Anonymous said...

Chicago writes:

Here is what I replied to Bill Stagg:

Thanks for the sarcasm Bill. However, I am not a subscriber. I was a subscriber when I lived in Durham until the buy out. Then I canceled.

If what you are trying to infer in an under handed manor is that I was STILL reading your paper and therefore that justifies your false direction of reporting that is sad. I read a lot of newspapers online. The Herald-sun is a disgrace to journalism right now. I truly hope you guys turn it around because I used to love your paper. However, with the changes that have been made since the buyout and the way you have spun the entire Duke Lacrosse case in favor of Nifong when the truth of this injustice is on the walls, you should be ashamed. Have you resorted to this new low in hopes people keep reading? Not a good strategy, look at your circulation

Anonymous said...

informative post, kc, unlike gretaoprah

this is not rocket science, boys

the tainted lineup alone is HUGE (think what would happen if 3 blacks were so treated, and quite frankly, i think it's a good time for all the 3's defense team to point out the double standard to Justice Dept--it's an ugly tactic, but effective)

question for attorneys: if the feds agree with the complaint, can case be immediately dismissed because of the tainted lineup?

Anonymous said...

bill A,

i agree with u re Sco (i wrote above post)

don't u think it's more important to agree that the Sc like Lac is a tautology--think it's time whites play the race card

most people in gov r feckless

a good PR firm could run with this


Anonymous said...

Are there any precedents in similar cases for the AG intervening before the trial....It seems citing a precedent might be needed--otherwise the interpretation of the applicable statutes is left up to the AG--and it probably isn't PC for him to interpret them favorably to Jones' petition.

Anonymous said...

it just occurred to me:

jones should have referenced Scottsboro in his letter to DOJ--

he fuc*d up


Anonymous said...

Your question about pre-trial dismissal demonstrates perfectly why it would have been very helpful for the Greta van S show to have someone from the AG's office as a guest, instead of the two defense attorneys arguing for what sounded like equally bad (unconstitutional)treatment for all defendants. I doubt the AG's office could have answered the question, though. It's unlikely there is any precedent for this pre-trial dismissal issue, and the
AG's office is or will be scrambling to figure out what remedies they can effect.

It seems to me this is a modern Scottsboro with a prosecution based primarily on prejudice and politics, but because of DNA testing, the evidence of rape is far weaker in today's LAX case. And at least at the outset of Scottsboro, two women corroborated each other's claim of rape. Now because of (1) DNA testing, (2) relatively new laws requiring full disclosure of discovery, (3) instantaneous worldwide modern communication, and (4) bloggers and a few journalists (heroes all) willing to examine with care ALL aspects of the case, many can appreciate the fatal flaws in the State's case well before trial. This is a new world order for the justice system and should allow for an age of much greater transparency and accountability.

We are in unchartered territory, and we have potential to find our way to significant improvements in our legal system that will benefit everyone.


Anonymous said...

Here's a great idea. Everybody bombard the Herald Sun publisher with e-mails and complaints. That'll make a bigger impact than talking to the Stagg-ster. He's a wimp.

H-S publisher Geoff Moser. E-mail (

I agree that their website is the pits!

Anonymous said...

Observer, your 11:51 post should be required reading.



Anonymous said...

another question:

would a letter to DOJ from a brilliant constitutional law prfessor carry any weight?


Anonymous said...

I have jury duty in 2 days. This case has caused me to have such contempt for prosecutors I'm not sure I can be an unbiased juror. I just hope the AG doesn't let this case fall by the wayside.

Anonymous said...

11:51 - I believe you are correct with this analysis. I emailed Greta (I would be surpised if she cares what I think) questioning her choice of Ted and Bernie as commentators, I did think she was inpatient with both of them.

Anonymous said...

I appreciate the compliment. And absolutely, brilliant constitutional law professors could help tremendously now. That's why the NYT (ugh) or some widely circulated publication with a national presence should be soliciting essays about this case from these able thinkers. Eventually, their perceptions and reasoning will come out in law review articles, but that takes some time usually and even then few of us will have the privilege of reading their work.


Anonymous said...

thanks, O

google tine


Anonymous said...

re constitutional experts:

i just got off the phone with laurance tribe's assistant--think i did a good job pitching her--will follow up with an email

to kc and anonymous posters with portfolio:

please email Laurance Tribe directly:

this case is right up tribe's alley


Anonymous said...

It is over. I suspect the Justice Department will decline an investigation on a variety of grounds; however, it will probably issue a statement "heightening the condemnation of the accused" - in this case Nifong... the manifest destiny of all this is for the Nifong supporters to turn against him... his culpability so grossly exceeds that of the accuser that I would love to see her file an IIED claim against him (sovereign immunity notwithstanding).

Anonymous said...

Excellent work! Perfect choice, of course. I am happy to follow up with an e-mail.


Anonymous said...

KC, you ask, "What constitutional grounds, however, could justify a federal action?"

By this, do you mean "what Constitutional basis ...?" or are you asking what grounds there would be that would not be UNconstitutional?

The reason I ask is because after you posit your question, you cite provisions of the United States Code. Obviously, those aren't bases within the Constitution but within the US Code instead.

I hate to nit-pick but your use of the word "constitutional" might be incorrect in this context. If you meant "authorized by" as opposed to "not inconsistent with", then I think you might wish to change the wording to something like, "What legal authority would support federal action?"

Otherwise, keep up the very excellent work in this case.

Anonymous said...

I dont know the legal inside baseball, but i do know if 3 black college kids were put in this scenario with a white accuser in a white Southern neigborhood with a good ol boy prosecutor running for reelection, the feds would be all over it. Just the rigged lineup would be enough to launch a civil rights investigation.

Anonymous said...

To 4:42---

You've got that right. Every black azz in America would have descended on Durham to help some "good black boys" who have been falsely accused by a white ho'. If it were the other way around.

But we are talking about Durham. The "Chocolate City" with idiots and racists.

BTW, where is Democrat Congressman David Price? Didn't he used to teach at Duke?

Before he lucked up and he and his drooling mousey wife set up shop in D.C. on their pastey flat azzes.

Where oh where are the Democrats? Aren't they the ones who are supposed to be concerned about every citizen's civil rights?


MIKEY NIFONG-----You be gone, baby!


Anonymous said...

Please, don't suggest Nifong is some rogue, an exception to the rule (i.e., Nancy Grace).

Just look at the work of the Innocence Project (.org) to understand how prosecutors lie, cheat, and frame - up to and including indicting the proverbial ham sandwich.

Give'em the nearest warm body, and it's off to the gallows.

billadams said...

If the players were minorities, the Federal Gov't would be all over this case.

Anonymous said...

Let's get serious out of blog land. How can we help and support Congressman Jones?

I know we can write AG Gonzales, how about the two NC Senators? I know one is Sen. Dole.

Our outrage about this terrible hoax must be heard by those who can make a difference.

Anonymous said...

Thanks for interesting article.