Duke Law School Panel

I happen to be in Durham for a few days, and so went by to watch today’s law school panel on prosecutors and improper public comments. Here’s a brief summary for those who couldn’t catch the webcast.

Metzloff:

He contended that the more serious charges in the ethics complaint are the pre-trial comments, and predicted the case might be one of the leading cases on this issue to talk about in law schools for quite some time.

If Nifong were still on the case, he added, this would be about easiest change of venue case you could imagine; neither he nor many colleagues he has spoken to could have judged case fairly with Nifong trying case, because of their distaste with his behavior.

Of all of Nifong’s comments, Metzloff termed the “hooligans” remark the worst, since it directly related to a bar rule prohibition—an assault on the personal character of the defendants.

In an intriguing section of his remarks, he tried to guess how Nifong might defend himself.

• Public statements made before anyone arrested;
• 1^st amendment arguments;
• His remarks constituted legitimate law enforcement purpose by trying to encourage “witnesses” to come forward;
• He was a political novice— and got carried away.

Neither Metzloff nor any of the other panelists seemed impressed by these defenses.

Metzloff also pointed out that the bar—though it didn’t have to do so—expanded the allegations into Rule 8.4 (misconduct), suggesting that the bar desires serious sanctions.

Coleman

His comments were succinct and brilliant. His criticism of Nifong, he stated at the stat, had nothing to do whether students innocent or guilty; and it didn’t matter if they were Duke students, or UNC students, or NCCU students. The issue was one of procedure. He said that he had two specific concerns with Nifong’s conduct and one general problem.

Specific:

1.) The statements were racially inflammatory; made in circumstances that appeared to be for political gain, Nifong knew that what he was doing would increase racial tension—in effect, he was pandering to black voters in Durham.

2.) The statements were intended to heighten public condemnation of lacrosse team and privileged white students at Duke generally.

His overarching concern:

Because of his statements and effect in Durham and in the University, Nifong’s actions increased the chances that some would be wrongfully charged and even wrongfully convicted. Nifong involved himself in the investigation, contended Coleman, “in a way that was destructive.”

Also, Coleman noted, Nifong put pressure on police to focus investigation in single direction. He cited two examples:

1.) DNA evidence: if Nifong really believed the accuser had been sexually assaulted, the unidentified men whose DNA was found in her rape kit would have to be suspects.

2.) Lineup—everyone involved understood that it was done improperly, designed solely to get the accuser to pick three players, any three players, that Nifong could indict.

The summary: Nifong committed himself to bringing a case; he broke procedures to do so.

Neff

The question is better framed as how not to cover cases where prosecutors make high-profile remarks.

The coverage of this case, he noted, changed from a criminal case to investigation of someone else’s investigation; hidden agendas therefore played a more substantial role.

Reporters, moreover, have a long history of getting in trouble in cases like this—Richard Jewell and Wen Ho Lee are examples of why reporters need to be really careful in using anonymous sources in case like this.

Also, Neff cautioned, reporters need to beware of meta-narratives—instead, they must rely on the facts. (The New York Times coverage is the obvious example here.)

Neff, meanwhile, said that he was assigned to the story initially with a simple mandate—go out and find second dancer. He didn’t do so (this was very early on, when Roberts’ identity was unknown.) But his editors kept him on story because they suspected there was prosecutorial misconduct occurring.

The summary: reporters covering such a case need to know how the process is supposed to work; they need to learn the rules.

Tigar

He was a mesmerizing performer. He stated that the Nifong case will serve us well only if first step to addressing serious injustices in the system.

Nifong, he contended, harmed the system of justice in three ways.

• His pretrial publicity had an obvious effect.

• He did a distinct disservice to people who want to bring complaints of wrongdoing, by making fair-minded people less likely to believe legitimate victims, or making victims afraid of coming forward lest their case be turned into a media circus.
  

• He derided people who invoked their constitutional right to counsel—thereby compromising basic values of the legal system.

All three attorneys predicted that the bar would punish Nifong severely. As Coleman noted, Nifong caused a great deal of damage; his behavior was intentional; and the damage was systemic.

Tiger also suggested that Nifong will have hard time establishing a Sullivan distinction on civil liability—since the lacrosse players weren’t public figures at the start of the case, Nifong will be very vulnerable to a libel suit.