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.”

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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.

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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;

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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.

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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.”

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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.